





CITATION:
R. v.
Figliola
, 2011 ONCA 457



DATE: 20110617



DOCKET: C46146, C45426 and C46175



COURT OF APPEAL FOR ONTARIO



Rosenberg, Goudge and Blair JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Maria Figliola and Daniele Domineco Di Trapani



Appellants



Michael W. Lacy, for the appellant Maria Figliola

P. Andras Schreck and Apple Newton-Smith, for the appellant Daniele
          Di Trapani



David Finley and John Pearson, for the respondent



Heard:  December 20
          and 21, 2010



On appeal from the convictions entered by Justice C. Raymond
          Harris of the Superior Court of Justice, sitting with a jury, on May 7, 2006.



By the Court
:

[1]

The appellants Maria Figliola and Daniele Di Trapani appeal
    from their convictions for first degree murder by a court composed of C. Raymond
    Harris J. and a jury.  The Crown alleged
    that Ms. Figliola hired Mr. Di Trapani to kill Frank Figliola, Ms. Figliolas
    husband.  While the appellants raised a
    number of grounds of appeal, we have found it necessary to deal with two: Ms. Figliolas
    submission concerning the cross-examination by Crown counsel of his own
    witness, Teresa Pignatelli, and Mr. Di Trapanis submission that the
    trial judge erred in refusing to grant his application for severance.  For the following reasons, the appeals are
    allowed and separate new trials are ordered.

THE FACTS

Events before August 6, 2001

[2]

There was no dispute at trial that Ms. Figliola and her
    husband had a difficult marriage.  At the
    time of the deceaseds death they were sleeping in separate rooms and largely
    leading separate lives.  The deceased was
    also having significant financial problems, which Ms. Figliola attributed to
    his gambling.  There was other evidence
    indicating that the deceased distrusted Ms. Figliolas financial dealings.  In any event, at trial, Ms. Figliola admitted
    that she stole $462,000 over a 20 year period from her then employer, a bank.  Following the deceaseds death, Ms. Figliola became
    entitled to various payments from the deceaseds employer and from life
    insurance policies totalling approximately $500,000.

[3]

Ms. Figliola had also begun an affair in April 2001
    with Geoffrey Gonsalves.  That
    relationship lasted for almost two years after the death.  Mr. Gonsalves became an important witness for
    the Crown as a result of statements that Ms. Figliola allegedly made to him and
    which the Crown argued were admissions of involvement in her husbands death.

[4]

The Crown led evidence of conversations Ms. Figliola
    had with co-workers before the death in which she said that her marriage was
    over but she was not going to get a divorce because of what she felt entitled
    to.  Two of her co-workers also claimed
    that she talked about having her husband killed and about hiring a hit man.

[5]

Ms. Figliola and Mr. Gonsalves met regularly between
    April and August 2001 in various places.  Mr. Gonsalves testified that, about two months before the deceaseds
    death, Ms. Figliola told him that she had had a physical argument with the
    deceased over finances.  She told Mr. Gonsalves
    that she knew some people to call so that she did not have to deal with the
    deceased any more.  Ms. Figliola denied
    that any such conversation took place.  Mr. Gonsalves also testified to other
    conversations, before the deceaseds murder, in which Ms. Figliola outlined
    various scenarios for dealing with her husband.  One of these scenarios involved someone
    attacking the deceased while Ms. Figliola and the deceased were out
    walking on a path, a scenario that closely resembled the manner in which the
    deceased died.  According to Mr. Gonsalves,
    she was in discussions with someone named Dan and her friend Teresa
    Pignatelli.  Ms. Figliola denied having
    any such discussions with Mr. Gonslaves or with Ms. Pignatelli or Mr. Di
    Trapani.

[6]

Ms. Figliola testified that she met Mr. Di Trapani
    through one of his aunts, who was a co-worker at the bank where she used to
    work.  She also began seeing him at Ms. Pignatellis
    home and work.  Mr. Di Trapani owned
    several social clubs in the Hamilton area and was also good friends with Ms. Pignatelli,
    as well as her husband, with whom he had a business relationship.

[7]

There was also evidence that Ms. Figliola gave Mr. Di
    Trapani a cell phone which she had acquired through her work for Compusmart,
    the company she joined after leaving the bank.  Ms. Figliola testified that she gave the cell phone to Ms. Pignatellis
    husband to give to Mr. Di Trapani.  Ms. Pignatelli
    had asked for the cell phone because Mr. Di Trapani was doing some construction
    work for them.  Mr. Di Trapani and Ms. Figliola
    spoke often using their cell phones.  In
    the month leading up to August 6, 2001, cellular telephone records show that Ms.
    Figliola and Mr. Di Trapani spoke 143 times.  This regular telephone contact ceased after the murder.

[8]

While Mr. Di Trapani did not testify, statements he
    made to the police were introduced by the Crown.  He told the police that he knew the deceased
    but saw Ms. Figliola more often and would see her at Ms. Pignatellis home
    and place of business.  When he was
    originally asked if the number for the cell phone Ms. Figliola had given him
    meant anything to him, he said it did not.  Later in the questioning, when he was told it was the number for the
    telephone Ms. Figliola gave him, he said that he did not get it from Ms. Figliola
    directly but rather from Ms. Pignatelli and that it was for the social
    club.  The cell phone cost $300 to $400
    per month and he gave the money for the phone to Ms. Figliola.

Events of August 6, 2001

[9]

Frank Figliola was found bludgeoned to death in the
    early morning hours of August 7, 2001 near a path close to his home in Stoney
    Creek.  His car was found on the street
    near the path and various witnesses saw the car being driven to this area
    around 9:00 p.m. on August 6, 2001.

[10]

Earlier that day, there was a large party at a park for
    Mr. Di Trapanis extended family.  He
    left the party around 8:30 p.m., telling his mother that he was going to his
    club.  One of the regular patrons at Mr. Di
    Trapanis club recalled seeing five or six men, including Mr. Di Trapani,
    standing outside the club and a fire burning in the bin behind the club.  He could not say what was being burned but
    told the police the appellant said he was burning shit he didnt like.  It was not uncommon for there to be fires in
    the bin at the club.

[11]

Luigi Latorre was a friend of Mr. Di Trapanis.  He gave a number of statements to the
    police.  In the early statements he said
    nothing that implicated Mr. Di Trapani.  During these interrogations, the police suggested that he was involved
    in the killing or was a witness.  However, after a lengthy interrogation, Mr. Latorre told the police
    about his encounter with Mr. Di Trapani on August 6, 2001.  He testified that on August 6, he arrived at Mr.
    Di Trapanis club between 9:00 p.m. and 9:30 p.m.  Mr. Di Trapani arrived about a half hour
    later.  Later, he drove Mr. Di Trapani to
    the street where the path begins where the deceaseds body was found.  As they drove by, Mr. Di Trapani leaned over
    trying to see something out the drivers side window and said just looking at
    something, keep driving.  Mr. Di Trapani
    then directed him to a residential area, where Ms. Figliola lived, and told him
    to stop the car.  Mr. Di Trapani left the
    car and went to one of the houses.  He
    returned about ten minutes later.  Mr. Latorre
    arrived home around 12:30 a.m. or 1:00 a.m.  Mr. Latorre last spoke to Mr. Di Trapani in December 2002.  He claimed that the Mr. Di Trapani told him
    he was in a little bit of trouble and that the police were going to question Mr.
    Latorre.  He asked Mr. Latorre to tell
    the police that they were together last year at Tim Hortons.

[12]

On August 6, 2001, Ms. Figliola and Mr. Di Trapani
    spoke twice, once for 17 seconds at 2:13 p.m. and once for 23 seconds at 7:25
    p.m.  In her testimony, Ms. Figliola
    could not recall what they discussed in those calls.  Cell phone records show that Mr. Di Trapani
    was in the Stoney Creek area for most of August 6, except for a call made at
    11:18 a.m. from St. Catharines.

Ms. Figliolas Statements to Geoffrey Gonsalves

[13]

After the deceaseds murder, Mr. Gonsalves claimed that
    Ms. Figliola told him it would cost $80,000 to carry something like that out.  She also told him she was not paying as
    Dan, the person she had hired, had run into legal problems and was going
    away for awhile.  Again, Ms. Figliola
    denied having these conversations.

[14]

A year after Mr. Figliolas death, the police obtained
    judicial authorization to intercept the telephone conversations of both
    appellants, as well as those of Mr. Gonsalves and Ms. Pignatelli.  The conversations between Ms. Figliola and Mr. Gonsalves
    showed a deteriorating relationship due, in part, to financial problems and his
    jealousy due to his belief that she was having relationships with other men.

[15]

The police also visited Mr. Gonsalves on September 18,
    2002.  They told him that they suspected
    that he was involved in the deceaseds murder.  This visit sparked several conversations between Mr. Gonsalves and Ms. Figliola
    in which Mr. Gonsalves repeatedly accused her of setting him up for her
    husbands murder.  Ms. Figliola denied
    this and said she would clear things up with the police and said she would sign
    something to give to the police.  In a
    call on September 26, 2002, she told Mr. Gonsalves that she would give the
    police a confession to something I didnt do.  A few days later, she met with Mr. Gonsalves and gave him
    something.  He later called her and said
    that he was going to have his lawyer turn the letter over to the police.  She tried to persuade him to give it back and
    said it was only security but now it was a noose.  Later that same day, a lawyer retained by Mr.
    Gonsalves handed over to the police a letter purportedly written by Ms. Figliola
    in which she says that Mr. Gonsalves had nothing to do with her husbands death
    and that she took full and all responsibility for my husbands death.

[16]

Ms. Figliola testified that Mr. Gonsalves forced her to
    write the letter because he was upset about being questioned by the
    police.  She wrote the letter to placate
    him, despite the fact that she bore no responsibility for her husbands death.

[17]

Mr. Gonsalves, although claiming to be afraid of Ms. Figliola,
    continued his relationship with her until March 2003, when she became enraged
    when she found out he had dated another woman.  On March 27, 2003, Mr. Gonsalves had a formal interview with the police
    in the presence of his lawyer.  Initially,
    he revealed little and was chiefly interested in getting into the witness
    protection programme.  After the police
    told him he was being too vague, he suspended the interview to talk to his
    lawyer.  When the interview resumed, he
    divulged details to the police such as the various plans that Ms. Figliola
    had talked to him about before the death.

[18]

As indicated, one of these plans was similar to the
    manner in which the deceased actually met his death.  In his statement, Mr. Gonsalves seems to
    suggest that the police had first given him details of how the deceased was
    killed.  The police officer in charge of
    the investigation denied giving Mr. Gonsalves those details.  Mr. Gonsalves in his testimony initially
    testified that he was unable to explain how he knew about how and where the
    deceased was killed.  Later, he admitted
    that he received some details either from the police or his lawyer.  However, he could not remember any details of
    how or when he received this information.  In a further interview with the police on April 29, 2003, Mr. Gonsalves
    said that he found out that the deceased had been killed on a path near Lake
    Ontario from my lawyer and conversations with the Hamilton Police.

[19]

As a result of the trial Crown counsels submission
    that Ms. Figliolas counsel had made an allegation of recent fabrication; in
    re-examination, Crown counsel was permitted to play the videotape of the entire
    April 29 police interview.  In the
    interview, Mr. Gonsalves said that Ms. Figliola had spoken to her friend Ms.
    Pignatelli, who could get a guy named Dan to do anything.  He also said that Dan was connected to the Mafia
    and to bikers.  In re-examination, Mr. Gonsalves
    also confirmed that, in the April 29 interview with police, he reported that Ms.
    Figliola had told him it was done shortly after the deceaseds murder.

Police Surveillance of the Appellants and Financial
    Transactions

[20]

Police surveillance showed the appellants met for about
    45 minutes in the parking lot of a Tim Hortons on September 6, 2001.  A friend of Mr. Di Trapanis, Americo Roque,
    testified that he was also present.  Ms. Figliola
    testified that they were simply talking about getting the deceaseds car
    cleaned.

[21]

On September 28, 2001, police surveillance officers saw
    Mr. Di Trapani drop Ms. Figliola off at her bank where she cashed a cheque
    for $3,500.  Mr. Di Trapani picked her up
    a short time later.  Ms. Figliola
    testified that $3,000 was for a car auction Mr. Di Trapani was going to take
    her to in order to look for a car for her daughter.  The other $500 was to get the deceaseds car
    cleaned.  However, she never actually
    gave Mr. Di Trapani the money.

[22]

On October 18, 2001, Ms. Figliola took out a bank draft
    for $4,300 payable to Mr. Di Trapanis mother.  Ms. Figliola testified that this bank draft
    was a partial payment for a car Mr. Di Trapani was going to buy at an auction
    for her daughter.  Mr. Di Trapani asked
    her to make the draft out to his mother because he was having problems at the
    bank.

[23]

The police asked Mr. Di Trapani about his meetings with
    Ms. Figliola on September 6 and 28, 2001.  He said the meeting on September 6 must have been to deliver a payment
    for the cell phone.  He could not
    remember why they met on September 28.  He denied that Ms. Figliola gave him $3,500 in the car that day.

[24]

Bank records also showed Ms. Figliola withdrew $4,500
    in cash on October 12, 2001 and a $10,000 cheque payable to a company
    registered in Mr. Di Trapanis name dated October 22, 2001.  Payment was stopped on the cheque before it
    was cashed.  Ms. Figliola denied
    writing this cheque.  She explained that
    someone had broken into her car around this time.  She immediately contacted her bank and had
    them stop payment on any cheques.  A
    handwriting expert from the Centre for Forensic Sciences testified that the
    signature on the cheque was probably not Ms. Figliolas.  The expert also testified that the endorsement
    of Mr. Di Trapanis mothers name on the October 18, 2001 bank draft was
    probably written by Mr. Di Trapani.

[25]

On December 31, 2001, Ms. Figliola deposited $15,000
    into an account in the names of her brother and mother.  Two months earlier, on October 26, 2001, a
    bank draft had been issued on this account in the amount of $10,000 payable to Mr.
    Di Trapanis company.  Ms. Figliola
    testified that this transaction also related to Mr. Di Trapani purchasing a car
    for her daughter.  In the end, he never
    did purchase a car.  She tried to track
    down Mr. Di Trapani to get the money back.  Ms. Pignatelli told her that Mr. Di Trapani was having money
    problems.  In July 2002, the appellants
    talked and Mr. Di Trapani acknowledged that he owed her the money.

[26]

The police asked Mr. Di Trapani about the $10,000
    cheque from Ms. Figliola to his company.  Mr. Di Trapani said that he had been in trouble and owed money to people
    who would break his legs if he did not repay them.  He could not say why Ms. Figliola had written
    a cheque to his mother.

[27]

The Crown also relied upon various statements made by Ms.
    Figliola to the police which the Crown claimed were untrue.  For example, Ms. Figliola told the police
    that she did not have a cell phone and that she did not have a boyfriend.  She testified that she lied because she was
    trying to keep her affair with Mr. Gonsalves secret.

[28]

She also told the police that on the evening of August 6,
    2001, a stranger came to her door, after the deceased had left.  She agreed to see a police hypnotist at the
    request of the police to help her remember and describe this stranger.  She didnt keep the appointments to see the
    hypnotist and made various excuses.  For
    example, on one of the dates she claimed she could not come because she had
    painters at the house.  Police
    surveillance showed that she went out with Ms. Pignatelli.  Ms. Figliola explained that she changed her
    mind about seeing the police hypnotist as a result of advice from her lawyer
    and her physician.

[29]

In an interview with Ms. Figliola, the police mentioned
    several names to her including the co-appellant, Mr. Di Trapani.  She said that she did not know this
    person.  Ms. Figliola testified that she
    only knew Mr. Di Trapani by his nickname, Biff.

Teresa Pignatellis Evidence

[30]

Crown counsel called Ms. Pignatelli to testify.  She testified that she had seen Mr. Di
    Trapani twice on August 6, 2001.  Around
    9:30 p.m., while walking to a store, she saw him in the parking lot of the
    social club that he operated.  A few
    minutes later, she saw him drive by her esthetics shop with Luigi Latorre.  She called him on his cell phone and spoke to
    him for a little over two minutes at 9:31 p.m.  She spoke to him again at 10:21 p.m. for 4 seconds.  She testified that she probably called him at
    this time when she was going home.

[31]

Ms. Pignatelli also testified to financial transactions
    with Ms. Figliola in November and December 2001.  She received a $1,000 cheque from Ms. Figliola
    on November 26, 2001, which was partial repayment of a loan Ms. Pignatelli had
    given Ms. Figliola for her sons school tuition.  Ms. Figliola gave her a cheque for $22,000 on
    December 10, 2001 to complete repayment of the loan and help Ms. Pignatelli
    retire a line of credit for which the bank was demanding repayment.  Ms. Figliola confirmed this version of
    events.

[32]

Ms. Pignatelli testified that she and Mr. Di Trapani
    were good friends in 2001.  They had a
    falling out in 2002 as a result of a dispute between him and her husband.  They reconciled in December of that year.

[33]

Following a
voir
    dire
, the trial judge permitted Crown counsel to cross-examine Ms. Pignatelli
    as an adverse witness under s. 9(1) of the
Canada
    Evidence Act
, R.S.C. 1985, c. C-5
.
This turned into an extensive
    cross-examination and is the subject of a ground of appeal by Ms. Figliola.  We will provide further details when dealing
    with this ground of appeal.  In short,
    during this cross-examination Ms. Pignatelli was cross-examined on when she
    learned of Ms. Figliolas relationship with Mr. Gonsalves, the amount of money Ms.
    Figliola had given her, a supposed gap in telephone contact with Ms. Figliola
    in the week prior to the murder, and allegedly inconsistent statements she had
    given about talking to Mr. Di Trapani on August 6, 2001 and the number of times
    she saw him that night.  Crown counsel
    suggested to Ms. Pignatelli that she was covering for the appellants and was
    prepared to say anything on the witness stand.

THE GROUNDS OF APPEAL

[34]

Each of the appellants raises a number of grounds of
    appeal.  While Ms. Figliola argues that
    the trial judge erred in admitting certain evidence and misdirected the jury in
    some respects, we only find it necessary to deal with the one ground of appeal
    permitting Crown counsel to cross-examine Teresa Pignatelli as an adverse
    witness under s. 9(1) of the
Canada
    Evidence Act.

[35]

Mr. Di Trapanis principal ground of appeal is that the
    trial judge erred in refusing to sever his trial from that of his co-appellant,
    Ms. Figliola.  In a closely related
    ground, he argues that the trial judge erred in permitting Mr. Gonsalves to
    testify about conversations he had with Ms. Figliola in which she allegedly
    identified Dan as the person she hired to kill her husband.  The appellant also alleges errors in the
    charge to the jury.  Since we are of the
    view that the trial judge erred in refusing to sever the appellants trial, we
    do not find it necessary to deal with the other grounds of appeal.

ANALYSIS

Cross-examination of Ms. Pignatelli as an
    Adverse Witness

[36]

Section 9 of the
Canada
    Evidence Act
reads as follows:

Adverse witnesses

9(1) A party
producing
    a witness shall not be allowed to impeach his credit by general evidence of bad
    character, but if the witness, in the opinion of the court, proves adverse, the
    party may contradict him by other evidence, or, by leave of the court, may
    prove that the witness made at other times a statement inconsistent with his
    present testimony, but before the last mentioned proof can be given the
    circumstances of the supposed statement, sufficient to designate the particular
    occasion, shall be mentioned to the witness, and he shall be asked whether or
    not he did make the statement.

Previous statements by witnesses not proved adverse

(2) Where the party producing a witness alleges
    that the witness made at other times a statement in writing, reduced to
    writing, or recorded on audio tape or video tape or otherwise, inconsistent
    with the witness present testimony, the court may, without proof that the
    witness is adverse, grant leave to that party to cross-examine the witness as
    to the statement and the court may consider the cross-examination in
    determining whether in the opinion of the court the witness is adverse.

[37]

Ms. Figliola attacks the trial judges ruling declaring
    the witness, Teresa Pignatelli, an adverse witness pursuant to s. 9(1), and the
    Crowns cross-examination following that ruling.  She submits the trial judge erroneously
    permitted the Crown to cross-examine its own witness for the sole purpose of
    demonstrating the witness was a liar attempting to cover up for the two accused
    and thus impermissibly tarring the appellants with the same credibility brush 
    all contrary to this courts decision in
R.
    v. Soobrian
(1994), 21 O.R. (3d) 603 (C.A.).

[38]

We do not see it in quite the same fashion, but we do
    agree with Mr. Lacy, counsel for Ms. Figliola, that a clear and specific
    mid-trial and final direction should have been given to the jurors instructing
    them that they could not use a finding that Ms. Pignatelli was not credible
    against Ms. Figliola or Mr. Di Trapani to conclude they, too, were not credible
    and were therefore guilty.  As we shall
    explain, this conclusion follows from the way in which the treatment of Ms.
    Pignatellis evidence evolved.

[39]

Soobrian
was
    a sexual assault trial with two accused, Soobrian and Beaudry.  The defence was consent. At trial, the Crown
    called a witness, Williams, who, with another man, had been in the same
    apartment as the parties at the time of the offence.  Williams had told the police immediately
    after the incident that he had not seen any sexual activity between the
    complainant and the accused men.  By the
    time of the preliminary hearing, however, he changed his story to favour the accused,
    testifying instead that he had witnessed consensual sexual activity between the
    complainant and Beaudry, but not between the complainant and Soobrian.

[40]

The Crown called Williams not for the purpose of
    establishing some facts in proof of the Crowns case, but for the deliberate
    tactical purpose of discrediting him and his evidence, and thereby  as this
    court said  [to] throw a shadow across the expected defence.  The Crown called Williams knowing that he would
    give the same evidence that he gave at the preliminary hearing in support of
    the accused and planning to impeach that evidence through resort to the prior
    inconsistent statement and then, through general cross-examination, to show
    that the witness had lied in collaboration with his friends.  The Crown was forthright in disclosing this
    objective and the trial judge refused to grant a declaration that the witness
    was adverse pursuant to s. 9(1), but nonetheless permitted cross-examination on
    the prior inconsistent statement pursuant to s. 9(2).

[41]

On appeal, this court agreed with the decision not to
    declare Williams adverse under s. 9(1) or to permit cross-examination of
    Williams at large.  Acknowledging that
    the Crown was technically within the ambit of s. 9(2), the court questioned
    whether there was any purpose left for a s. 9(2) order permitting
    cross-examination on the prior statement, since the Crown was not attempting to
    show that either the prior statement or the witness testimony at trial was the
    truth. This court concluded, however, that precluding cross-examination on the
    prior statement would have left the jury without adequate information to assess
    Williams credibility and that, since the Crown had begun its cross-examination
    before seeking a
voir dire
, there was
    little choice but to proceed as the trial judge did and to leave the matter to
    be dealt with in the charge to the jury.

[42]

There was no specific instruction to the jury in the
    charge respecting the use of Williams testimony, and the appeal was allowed on
    that basis.  The court said at pp.
    612-13:

It is plain that the witness Williams did not adopt
    his prior statement as true and the only use the jury could properly make of
    his evidence that he saw the things he testified to was either to accept it,
    reject it or give it little weight having regard to the view they took of his
    initial statement to police and his explanation for having made it.  But, on the facts of this case, the thing for
    which the jury could not use a finding of credibility against Williams, if
    based on his statement to the police, was to support a finding that neither
    [either?] or both of the appellants were not credible. Nor could it support the
    truth of the complainants evidence that either of the appellants had sexually
    assaulted her.  A finding against the credibility
    of Williams on these grounds would simply neutralize his evidence under
    oath.  The instruction on the use of
    prior inconsistent statements was useful as far as it went.  In the unusual circumstances of this case, it
    did not go far enough in not addressing the true purpose for which that
    evidence was tendered by the Crown.  Williams evidence did not support the evidence of the complainant, or
    in any other way advance the Crowns case.  Williams cross-examination tended to show that he was not a credible
    witness, but that in itself had no relevance to the case.  The true purport of Williams evidence,
    including his cross-examination by the Crown, was to show that the appellants
    were not credible because Williams was not.  The trial judge should have made clear to the jury that there was no
    basis upon which they could use Williams evidence to support that conclusion.

While there was no objection to the charge, we
    think it was non-direction amounting to misdirection to not make clear to the
    jury these things specifically.

[43]

This case is not dissimilar in the result.

[44]

Ms. Pignatelli was a close friend of both Ms. Figliola
    and Mr. Di Trapani.  She spoke to each on
    a regular basis, sometimes more than once daily by telephone.  She was able to give evidence with respect to
    (a) the relationship between the various principals, particularly of the
    relationship between Ms. Figliola and Mr. Gonsalves and between Ms. Figliola
    and Mr. Di Trapani; (b) the fact that Ms. Figliola agreed to provide a cell
    phone to Mr. Di Trapani through her work at her own expense; (c) the fact that
    she had seen Mr. Di Trapani at around 9:00 p.m. on the night of the murder in
    an area not far from the scene of the murder; and (d) that she had seen him in
    the company of the witness Louis Latorre, thus corroborating the testimony of Mr.
    Latorre at least insofar as they were together in the same car on the night in
    question.

[45]

The Crown was thus justified in calling  and, indeed,
    may have had little choice but to call  Ms. Pignatelli as a witness.  We are not able to conclude on the basis of
    this record that the Crown initially, and deliberately, called her for the
    purpose of impeaching her testimony through prior inconsistent statements and
    then, having obtained a s. 9(1) order and permission to cross-examine her at
    large, showing that she was an inveterate liar who was covering up for, and
    collaborating with, the two accused  thereby tarnishing their credibility as
    well and enhancing the likelihood of a finding of guilt.  It is that type of purpose on the part of the
    Crown that is forbidden by
Soobrian.

[46]

That said, however, the cross-examination of Ms.
    Pignatelli became problematic as it evolved.

[47]

The Crown cannot be faulted for seeking an adversity
    ruling under s. 9(1), nor do we think there is any basis for interfering with
    the trial judges discretionary decision to grant that order in the
    circumstances.  He concluded after a
voir dire
 correctly, in our view 
    that Ms. Pignatelli had made a number of prior statements to the police and at
    the preliminary hearing that were inconsistent with her testimony at trial;
    that she adopted a position in her testimony opposite to the Crowns position;
    and that she had a motive to protect her friends.  There was ample support on the record for
    those findings and for the decision based on them.

[48]

The Crown sought an order under s. 9(1) declaring Ms.
    Pignatelli an
adverse
witness.  The trial judge made an order declaring Ms.
    Pignatelli an
adverse
witness.  The Crown did not seek, nor did the trial
    judge grant, an order declaring her a
hostile
witness, and, contrary to Ms. Pignatellis submission, the trial judge did not
    make an order granting the Crown leave to cross-examine Ms. Pignatelli at
    large.  Perilously, though, everyone
    appears to have assumed that such an order had been made.  The Crown proceeded to cross-examine the
    witness forcefully in a wide-ranging fashion  and with considerable success 
    with no intervention by the trial judge and no objection from defence counsel
    (not counsel on the appeal) or request for a limiting instruction to the jury.

[49]

However, this seamless move to a cross-examination at
    large was misguided.  In Ontario, a
    ruling that a witness is adverse pursuant to s. 9(1) of the
Canada Evidence Act
is not the
    equivalent of a common law declaration of hostility entitling the beneficiary
    of the ruling to cross-examine the witness at large.  This court has held that adversity and
    hostility are not synonymous for these purposes:
Wawanesa Mutual Insurance Co. v. Hanes
, [1961] O.R. 495 (C.A.);
R. v. Cassibo
(1982), 39 O.R. (2d) 288
    (C.A.).

See also,
R. v. Vivar
, [2004] O.J. No. 9 (S.C.),
    at paras. 11-12;
R. v. S.W.S.
, [2005]
    O.J. No. 4958 (S.C.);
R. v. Osae
,
    2010 ONSC 3108;
R. v. Gushue (No. 4)
,
    1975 CarswellOnt 25 (Ont. Co. Ct.);
R. v.
    Cronshaw
(1976), 33 C.C.C. (2d) 183 (Ont. Prov. Ct.).

[50]

This jurisprudence confirms that an

adverse witness is one who is opposed in interest or
    unfavourable in the sense of opposite in position to the party calling that
    witness, whereas a hostile witness is one who demonstrates an antagonistic
    attitude or hostile mind toward the party calling him or her.  In
R.
    v. Coffin
(1956), 114 C.C.C. 1 (S.C.C.), at p. 24, Kellock J. described a
    hostile witness as one who does not give his or her evidence fairly and with a
    desire to tell the truth because of a hostile
animus
towards the prosecution.

[51]

The common law right of a party to cross-examine his or
    her own witness at large with leave of the trial judge, if in the judges
    opinion the witness is hostile, is not affected by s. 9(1) of the
Canada Evidence Act
:
Cassibo
,
per
Martin J.A., at p. 302.   Section 9 makes no reference to a witness
    proving
hostile
 and contains no
    suggestion of a right to cross-examine at large.  As Porter C.J.O. pointed out in
Wawanesa
, a declaration of hostility and
    its consequences are something that arise in addition [to] a finding of
    adversity.  At pp. 507-508, after
    reviewing the steps to be taken by a judge in deciding whether to make a
    declaration of adversity and the factors to be considered, he stated that
    [t]he Judge,
if he declared the witness
    hostile
, might,
in addition
permit him to be cross-examined (emphasis added).  It follows that a declaration of adversity
    pursuant to s. 9(1) was not, itself, sufficient to trigger a right in the Crown
    to cross-examine Ms. Pignatelli generally as to all matters in issue.

[52]

Ill-advisedly, however, that is what happened.  The Crown cross-examined the witness about
    inconsistencies between her evidence at trial and statements she had made to
    the police during interviews on three occasions (October 2, 2002, January 14,
    2003, and January 22, 2003) as well as between her evidence at trial and at the
    preliminary hearing.  These
    inconsistencies related to such things as: when she knew the Ms. Figliola was
    in a relationship with Mr. Gonsalves (at trial she acknowledged suspecting they
    were involved at the time of the murder, but in October she told the police she
    did not know); the amount of money Ms. Figliola had given her; and a number of
    details about the evening of August 6, 2001 (in her October statement she did
    not tell the police she had seen the Mr. Di Trapani that night; in both January
    statements she said she twice saw Mr. Di Trapani and Mr. Latorre drive by her
    shop where she was having an ice cream with Ms. Figliolas cousin, Bruna; at
    trial she said they drove by once).

[53]

As Ms. Pignatellis cross-examination by the Crown
    developed, however, it is apparent that these questions were simply a
    springboard to a much broader attack on her credibility.  The cover up theory emerged.

[54]

In this respect, the Crown cross-examined Ms. Pignatelli
    on an intercepted phone conversation in which she had offered to cover for
    Ms. Figliola so that she could conceal from her children the fact that she had
    spent the night with Mr. Gonsalves at his home, thus suggesting she was
    covering for the appellant with her testimony as well.

[55]

Intercepted phone calls were also the theme around
    which the Crowns attack on the witnesss denial that she knew that Ms.
    Figliolas relationship with Mr. Gonsalves was intimate before the murder was
    built.  The Crown put to Ms. Pignatelli a
    large number of interceptions showing Ms. Figliolas cell phone moving from the
    Stoney Creek area to the Scarborough area, where Mr. Gonsalves lived, over a
    lengthy period of time, interspersed with calls to one of Ms. Figliolas phones
    at or about the same time.  The following
    exchange puts the cover up suggestion directly to her (and the jury):

Q. Now, Ms. Pignatelli Ive reviewed with you those
    records for a purpose and that is to suggest that you are not being truthful
    with this jury when youre telling us that you had no idea, you didnt know
    that Maria Figliola was involved in an intimate relationship with Geoff
    Gonsalves prior to the murder of Frank Figliola?

A. Im not lying.  I did not know for a fact.  If I
    wanted to imagine I would say yes.  Did
    she tell me from her mouth? No. Did I know she saw him?  Yes, I did.

Q. You had to have known just looking at those
    phone calls, the numerous trips shes making to Scarborough while in telephone
    communication with you ...

A.  I dont
    recall ...

Q.  ... she
    had to have told you that?

A.  To tell
    me that she was sleeping with him?

Q.  Yes.

A.  Were not
    in high school.

Q  She had to
    have told you that?

A.  Im not
    ...

Q.  Youre
    not telling us that ...

A.  Im not

Q. ...
youre
    trying to protect her?

A.
Protect her from what?

Q.
From responsibility for this murder.

[Emphasis
    added.]

[56]

During the October 2, 2002 interview, Ms. Pignatelli
    made no mention of Mr. Di Trapani.  When
    questioned about Mr. Di Trapanis cell phone number, Ms. Pignatelli denied that
    she recognized it. Phone records showed that Ms. Pignatelli had called that
    number on many, many occasions.  At the
    time of this interview, Mr. Di Trapani had not been interviewed by the police
    and it is not clear that he was then a suspect.  The Crown used this exchange to make the point that the witness was
    withholding information from the police in order to deceive them, because she
    knew if [she] mentioned [that the phone number was Mr. Di Trapanis] ... the
    logical result would be that the police would go speak to Mr. Di Trapani.  Twice, Crown counsel put directly to Ms.
    Pignatelli that she did not identify the owner of the phone number because she
    was protecting Mr. Di Trapani, adding once that she was doing so just like
    [she] protected Maria Figliola.

[57]

Two other aspects of the Crowns cross-examination of
    Ms. Pignatelli bear mentioning.

[58]

First, the Crowns take on the drive-by testimony
    appears to shift.  In examination in
    chief, and before the adverse witness ruling, Crown counsel elicited evidence
    from the witness about the fact that she had seen Mr. Di Trapani and the Mr. Latorre
    drive by her esthetics shop at around 9:30 p.m. on the night of the murder
    while she and Bruna Di Iorio were sitting out in front eating ice cream.  She said she called Mr. Di Trapani on his
    cell phone (phone records show a call at 9:31 p.m. lasted 2 minutes and 57
    seconds).  This evidence was capable of
    corroborating the testimony of Mr. Latorre, who said he and Mr. Di Trapani were
    together that night and that Mr. Di Trapani had requested him to drive him to a
    point near the site of the murder.  Indeed, this is one of the purposes, as noted above, that Crown counsel
    on appeal submits entitled the Crown to call Ms. Pignatelli as a witness.

[59]

Following the ruling, however, and during the robust
    cross-examination at large, the Crown appears to use the testimony in a
    different fashion  to show that it was false and designed to provide an alibi
    for Mr. Di Trapani.  Building on a
    discrepancy between Ms. Pignatellis evidence in chief that Mr. Latorre was
    driving the vehicle and earlier statements to the police that she didnt know
    who was driving, Crown counsel suggested that the reason why she couldnt
    remember was that the event never happened.  Near the close of cross-examination, the subject was re-visited.  Ms. Pignatelli had made no mention of Mr. Di
    Trapani in her October 2, 2002 statement to the police.  The Crown extracted an admission that she had
    talked to Mr. Di Trapani prior to her statements to the police on January 14
    and 22, 2003, and was aware that he had been interviewed as well.  The Crown then suggested that lo and behold
    [she now] came up with this story that [she] saw Mr. Di Trapani with Mr.
    Latorre.  She then gave Mr. Latorres
    name to the police during the January interviews, suggested the Crown, because
    he was part of a plan to provide an alibi for Danny Di Trapani on the night of
    the murder.

[60]

Lastly, the Crown established through Ms. Pignatelli
    that she had visited Mr. Di Trapani while he was in jail awaiting his bail
    hearing following his arrest and that, in August, 2004, she and her husband had
    accosted Mr. Latorre in a bar in Toronto.  The suggestion was that they were trying to intimidate a potential Crown
    witness in order to protect Mr. Di Trapani.

[61]

The Crowns s. 9(1) cross-examination was very
    effective.  However, that is not the
    point.  It is the problem.  In our view, by taking the tack it did, the
    Crown  inadvertently or otherwise  strayed into impermissible
Soobrian
territory.  Even without any initial intent to do so, the
    ultimate effect of the cross-examination was to create the very scenario that
Soobrian
envisages:  the effect of the cross-examination was to
    shred the credibility of the Crowns own witness and to create a factual matrix
    in which the jury might well conclude that Ms. Pignatelli was not only a liar,
    but was a witness lying for the very purpose of covering up for the appellants
    wrongful deeds and that the appellants were therefore liars themselves, and
    guilty too.

[62]

Following the s. 9(1) ruling, the Crown should have
    been restricted to cross-examining on the prior inconsistent statements and the
    circumstances surrounding them.  Once the
    cross-examination at large evolved, however, without any objection from defence
    counsel for either accused, the jury was in the same position as the jury in
Soobrian
.  The jurors needed to understand clearly that
    if they found Ms. Pignatelli not to be credible, they could not use that
    finding to conclude that either or both of the appellants were not credible
    either.  Nor could they use such a
    finding to so support a conclusion that either or both of the appellants were
    guilty.  As this court stated in
Soobrian
at p. 613:

It was incumbent on the trial judge to instruct the
    jury that, in the absence of any evidence of collusion between [Ms. Pignatelli]
    and the appellants, there was no basis upon which they could draw an inference
    adverse to the defence from the fact that [Ms. Pignatelli] was a liar, if they
    were to so find.

[63]

In our view, a
    specific instruction relating to Ms. Pignatelli was required in these circumstances.  We do not accept the Crowns submission that
    the portion of the trial judges general instructions respecting the assessment
    of credibility directing the jurors to consider whether a witness has an
    interest in the outcome of the case or any reason to give evidence that is more
    favourable to one side than to the other were sufficient to de-escalate the
    risk posed by the
Soobrian
factor
    that developed.  The specific instruction
    should have been given mid-trial, immediately following the Crowns cross-examination
    of Ms. Pignatelli, and repeated in the charge to the jury.

[64]

We recognize that there were no defence objections
    either to the cross-examination or to the charge to the jury, and, indeed, that
    defence counsel declined to request any special instructions with respect to
    Ms. Pignatellis testimony in spite of specific questions from the trial judge
    and Crown counsel as to whether they did.  Like the court in
Soobrian
,
    however, we feel that it was non-direction amounting to misdirection [not to]
    make clear to the jury these things specifically.

[65]

We
    would therefore allow the appeal, set aside Ms. Figliolas conviction and order
    a new trial.

Severance of Mr. Di Trapanis Trial

[66]

Mr. Di Trapani argues that he must be retried because
    his trial should have been severed, and heard separately from that of Ms. Figliola.

[67]

He bases this on the prejudice to him arising from
    certain evidence given at trial by Mr. Gonsalves that was inadmissible against
    him. Its impact was increased when its substance was repeated in re-examination
    when Mr. Gonsalves adopted his prior consistent statement given out of court to
    the police and videotaped by them. It was played for the jury. Added to this
    was the fact that the trial had proceeded for a number of weeks prior to this
    testimony on the basis that the prejudicial evidence would be excluded. Mr. Di
    Trapani says that, as a consequence, the failure to sever his trial resulted in
    an injustice requiring that his conviction be set aside and that he be retried
    separately.

[68]

For the reasons that follow, we agree.

[69]

Prior to trial, counsel for Mr. Di Trapani moved to
    have his trial severed from that of Ms. Figliola because of the evidence of Mr.
    Gonsalves with respect to the statements made by Ms. Figliola to him about
    arranging to have her husband killed. This evidence was admissible against Ms. Figliola
    but not against Mr. Di Trapani, although it would significantly prejudice him. We
    have set out above a summary of Mr. Gonsalves testimony. However, to put this
    ground of appeal into context, we refer to the testimony Mr. Gonsalves was
    expected to give when the severance application was first brought. Mr. Gonsalves
    was expected to testify that Ms. Figliola told him prior to the murder that she
    could arrange to have her husband killed by contacting Teresa Pignatelli who
    could then contact a person named Dan who could arrange the murder. Ms. Figliola
    described Dan as large, husky and Italian with ties to organized crime and
    bikers. Mr. Di Trapani is large, husky and Italian and his name is Dan. Mr. Gonsalves
    was also expected to say that Ms. Figliola talked about three scenarios for
    killing her husband and that Dan could be convinced to help her. In one of
    these, she would take her husband for a walk on a wooded path that they had
    been to previously, where someone would be waiting to carry out the plan. Frank
    Figliolas body was found beside a wooded path where he had gone for walks
    before.

[70]

During the submissions on the severance application,
    the trial judge suggested that the references to the name Dan and his
    description as heavy and Italian could be edited out of Mr. Gonsalves
    testimony and that the individual could merely be described as a man. Mr. Gonsalves
    testimony would thus not implicate Mr. Di Trapani.

[71]

After further discussion, counsel agreed with this
    suggestion. Counsel for Mr. Di Trapani acknowledged that, with this change,
    there would not be much to his severance application and it would mean that
    the wind is out of my sails.

[72]

The trial judge delivered his ruling on December 20,
    2005. It included this description of the problematic evidence:

At the preliminary hearing Mr. Gonsalves testified
    that the accused Figliola told him that she had obtained a person who could
    make people disappear. Gonsalves testified that Figliola had described this
    person by the name of Dan who was Italian and a husky, big and overweight
    man. This testimony would be admissible against Figliola, but not admissible
    against Daniele Di Trapani who is Italian, husky and carries the first name of
    Dan.

This testimony at trial would be significantly
    prejudicial requiring careful and clear instructions to the jury. I was
    disposed to refusing severance, however, the Gonsalves testimony was
    troublesome.

[73]

The trial judge then referred to the Crowns concerns about
    editing Mr. Gonsalves evidence and concluded by issuing his ruling in the
    following terms:

The Crown outlined two perils with the suggestion:

First, if Gonsalves testifies in the suggested
    manner of leaving out the description of the man, then the defence could
    suggest a different name to the man.

Secondly, Ms. Figliola might deny the conversation
    with Gonsalves, in which case he would need to provide details of the
    conversation for his credibility.

Counsel for both accused responded helpfully and
    accommodations were arranged. The result, as I apprehend the submissions, is
    that there would be no mention of the name Dan and no mention that he was
    Italian and overweight or husky or big, and no suggestion of a different name
    would be offered and no attempt to deny the conversation with Gonsalves.

It was also agreed that there would be no mention
    of the man being from the Mafia and that organized crime would be used in its
    place.

Accordingly, the application for severance is
    abandoned and the accommodation articulated in this ruling is undertaken by all
    counsel.

Having said that, if I have misapprehended the
    agreement, counsel is free to make their submissions.

[74]

Counsel for Ms. Figliola, who had said nothing in her
    submissions to suggest that she would make no attempt to deny the conversation
    that Mr. Gonsalves would testify to, immediately took up this invitation from
    the trial judge, and made clear that she did not admit that the conversation
    occurred:

Certainly on behalf of Mrs. Figliola, I indicated
    very clearly that we would not, in cross-examination, intend to elicit or
    challenge Mr. Gonsalves on the details of his statement which had been ruled
    inadmissible. But it is not an admission that my client simply was talking to
    him about a hit man.

So were not admitting that that conversation
    occurred
, but we certainly will not go near the details in an effort to
    challenge his credibility based on what we know has been ruled as inadmissible.
    [Emphasis added.]

[75]

The trial judge did not change his ruling, simply
    responded as follows:

HIS HONOUR:         Ive
    made a note of that.

MS. EDWARD:         Thank
    you.

HIS HONOUR:         And
    that will be addressed. I dont think now is the time to do it.

[76]

Ms. Figliola and Mr. Di Trapani were placed in the
    charge of the jury on January 10, 2006. The Crown began its evidence on January
    11, 2006. The trial concluded on May 7, 2006 when the jury rendered a guilty
    verdict for both accused after three days of deliberations.

[77]

By March 7, the Crown had been calling evidence for
    eight weeks and had reached the point at which Mr. Gonsalves was to be the next
    witness. Following his evidence, it was anticipated that the Crown would take
    only two more weeks to complete its case. At this point, most of the Crowns
    case had been called.

[78]

The last Crown witness prior to Mr. Gonsalves was the
    detective who had interviewed him. In cross-examining the detective, counsel
    for Ms. Figliola made several suggestions to the effect that Mr. Gonsalves had
    access to information about the murder from sources other than Ms. Figliola.

[79]

When the detectives evidence concluded on March 7, the
    Crown addressed the trial judge in the absence of the jury. Counsel suggested
    that this cross-examination was laying the foundation to suggest to Mr. Gonsalves
    that his conversation with Ms. Figliola never happened and that he had obtained
    his information about the murder from other sources. Counsel for the Crown said
    that this contravened the basis of the December 20 ruling and required a
    revisiting of Mr. Di Trapanis abandoned severance application. Counsel argued
    that, in order to demonstrate that the conversation had occurred, Mr. Gonsalves
    ought to be permitted to testify about all the details, including Ms. Figliola
    naming Dan and describing him as a large husky Italian with biker and Mafia
    connections.

[80]

Counsel for Mr. Di Trapani responded with a brief
    reprise of his arguments for seeking a severance in December. He added to this
    his significant concern about what had transpired since then:

And rather than have a severance pre-trial, we are
    now eight weeks into this trial. And as a result of that, the prejudice which
    flows to Mr. Di Trapani is more considerable than had it been  than the
    landscape for severance pre-trial, because on the basis of the all-parties
    agreement, I have not cross-examined ancillary witnesses regarding Mr.
    Gonsalves, nor have I sought to elicit interceptions which may put Mr.
    Gonsalves in even more unfavourable light because I have been proceeding on the
    basis that with the all-parties agreement and no Dan, no
indicia
, no adjectives of Dan, which would look  from which the
    jury would look at my client, the battle with  my contest with Mr. Gonsalves
    was minimal, if it even existed.

[81]

Counsel for Ms. Figliola reiterated the position she
    had taken on December 20, namely that she would be challenging Mr. Gonsalves
    about whether the conversation with Ms. Figliola took place, but would not
    cross-examine him about the details edited out by the December 20 ruling. The
    trial judges immediate response was that this position was a challenge to Mr. Gonsalves
    credibility and was inconsistent with what had been agreed to in December.

[82]

While the trial judge did not formally set aside his
    December 20 ruling, he made clear his view that the position now taken by
    counsel for Ms. Figliola was inconsistent with the agreement on December 20 and
    that the Crown should be free to lead the evidence prejudicial to Mr. Di
    Trapani that his previous ruling had excluded. He then accepted the Crowns
    suggestion that counsel for Mr. Di Trapani be invited to immediately renew the
    severance application more formally.

[83]

Counsel did so on March 8. He reiterated the prejudice
    to Mr. Di Trapani arising from Mr. Gonsalves evidence that Ms. Figliola
    identified the person who arranged the murder as Dan who was large, husky,
    Italian and connected to bikers or the Mafia. He added to this the prejudice
    that came from not having sought to cross-examine Crown witnesses in order to
    put Mr. Gonsalves in a bad light, because there had been no need for it. He
    referred by way of example to the surveillance evidence concerning Mr. Gonsalves,
    the wiretap evidence (and disclosures not put in evidence, which he had not
    reviewed with this in mind) and evidence of questionable banking transactions.
    Finally, he expressed grave concern about the change in trial tactics that
    recalling witnesses for cross-examination would require at a stage of the trial
    when he was fully engaged in preparing for the remainder of the Crowns case
    and assembling the defence evidence. He was alarmed at the impact this change
    would have on the jury and its perception of how important this evidence must
    seem to counsel when no explanation for the change in tactics would be offered.
    He reminded the trial judge that none of these concerns were his doing. He
    therefore proposed that Mr. Di Trapani be severed from the trial and that the
    trial of Ms. Figliola continue.

[84]

The Crowns position was simply that the agreement of
    counsel in December had unravelled, that any prejudice to Mr. Di Trapani could
    be remedied by recalling witnesses for new or further cross-examination, and
    postponement of Mr. Gonsalves evidence until that was done. The Crown argued
    that the evidence against Mr. Di Trapani was so intertwined with the evidence
    against Ms. Figiola that the interests of justice required a joint trial.

[85]

The trial judge delivered his ruling dismissing the
    severance application on March 8, with further reasons on April 3. In his March
    8 reasons, he explained his view of the need for the new severance application:

Yesterday, counsel for Mrs. Figliola in
    cross-examination of a Crown witness took a position inconsistent with the
    December agreement, which according to Mr. Di Trapani, changed the evidentiary
    landscape he had relied upon in his defence. This motion was therefore brought
    on promptly this morning...

[86]

He addressed the recalling of witnesses as follows:

I see no injustice to the applicant here and I am
    confident that any prejudice that has come the applicants way can be remedied.
    The Crown will re-call any witnesses required for new or further
    cross-examination by the applicant and my instructions to the jury will be
    clear and strong and perhaps repetitive as the trial proceeds in order to
    ensure that no improper use of the evidence is made.

[87]

In his further reasons on April 3, he addressed the
    change of trial tactics required of Mr. Di Trapani with this assertion:

The change of trial tactics should not negatively
    influence the jury as re-questioning witnesses regarding Mr. Gonsalves prior to
    his testimony would not appear overly unusual.

In the result, the application for severance is not
    allowed.

[88]

Following the ruling of March 8, counsel for Mr. Di
    Trapani declined to seek to recall witnesses because, as he had argued, it
    would be impractical and the change in tactics towards Mr. Gonsalves
    necessitated would leave the jury wondering why and would draw their attention
    to Mr. Di Trapanis concern over Mr. Gonsalves evidence.

[89]

The Crown then proceeded to call Mr. Gonsalves. In his
    evidence-in-chief, Mr. Gonsalves testified that Ms. Figliola told him that
    her friend Teresa could get her someone to get rid of her husband. Ms. Figliola
    identified the person as Dan, a huskier, bigger, Italian guy who was involved
    in organized crime or knew people who were, and who could have something like
    this done.

[90]

Mr. Gonsalves testified that Ms. Figliola described
    three scenarios to him, one of which was that she would take her husband for a
    walk on a wooded pathway they knew, where someone would be waiting to carry out
    the plan. When she then reported the death of her husband to Mr. Gonsalves, he
    understood her to say that one of the plans she had described had been carried
    out. She later told Mr. Gonsalves that she was not going to pay Dan the $80,000
    it cost because he had run into some trouble.

[91]

Prior to re-examining Mr. Gonsalves, the Crown asserted
    that in cross-examination, counsel for Ms. Figliola had set up the argument
    that the evidence of what Ms. Figliola told him was recently fabricated. As a
    consequence, in the re-examination of Mr. Gonsalves, the Crown played the
    videotape of his out of court interview with the police on April 29, 2003. In
    it, Mr. Gonsalves appeared emotional and afraid for his own safety, and gave
    essentially the same details as he had in his evidence-in-chief, namely that
    the husky Italian with Mafia and biker connections named Dan arranged the whole
    thing.

[92]

At the conclusion of Mr. Gonsalves evidence-in-chief,
    at the end of Mr. Gonsalves reply evidence, and in his final charge, the
    trial judge gave the jury a direction on the use they could make of this part
    of Mr. Gonsalves evidence. Its essence was as follows:

[T]here is a special rule on how to use statements
    made by an accused outside the courtroom. And you have heard some statements
    attributed to Mrs. Figliola today.

...

You must not consider anything Ms. Figliola said to
    Mr. Gonsalves in reaching your verdict on Mr. Di Trapani, even if it
    describes what Mr. Di Trapani said or did. Mrs. Figliolas testimony is not
    evidence against Mr. Di Trapani in any way, shape or form. You can only
    consider it as it applies to Mrs. Figliola because it comes from her.

[93]

When
    faced with a severance application, s. 591(3) of the
Criminal Code
, R.S.C. 1985, c. C-46 requires that the trial judge
    assess whether severance would be in the interests of justice. A trial judges
    decision on severance is an exercise of discretion and is entitled to
    deference: see
R. v. Hamilton
, 2011
    ONCA 399. In
R. v. Last
, [2009] 3
    S.C.R. 146, at para. 14, the Supreme Court of Canada quoted from
R. v. Litchfield
, [1993] 4 S.C.R. 333,
    to describe the basis for interfering with that discretion:

As noted by this Court in
R. v. Litchfield
,
[1993] 4 S.C.R. 333
[at pp. 353-54], the absence of specific
    guidelines for granting severance requires that deference be afforded to a
    trial judge's ruling to the extent that he or she acts judicially and the
    ruling does not result in an injustice:

The
    criteria for when a count should be divided or a severance granted are
    contained in ss. 590(3) and 591(3) of the
Code
. These criteria are very
    broad: the court must be satisfied that the ends or interests of justice
    require the order in question. Therefore, in the absence of stricter
    guidelines, making an order for the division or severance of counts requires
    the exercise of a great deal of discretion on the part of the issuing judge.
    The decisions of provincial appellate courts have held, and I agree, that
an
    appellate court should not interfere with the issuing judge's exercise of
    discretion unless it is shown that the issuing judge acted unjudicially or that
    the ruling resulted in an injustice
. [Emphasis in original.]


[94]

The
    question in this case is not whether the trial judge reached his decision
    unjudicially. Clearly there are strong policy reasons for accused persons
    charged with offences arising out of the same series of events to be tried
    together, although their force is perhaps somewhat muted, where, as here,
    neither alleges the other is the guilty party and where there is no real risk
    of inconsistent verdicts from separate trials: see
R. v. Crawford
, [1995] 1 S.C.R. 858.

[95]

In
    the case at bar, the trial judge focused particularly on the fact that the
    evidence against Mr. Di Trapani was inextricably intertwined with the evidence
    against Figliola. This, in his view, made a joint trial desirable, presumably
    because of the benefit to trial efficiency and truth seeking.

[96]

The
    question is whether the ruling resulted in an injustice. As the Supreme Court
    of Canada made clear in
R. v. Last
,
    that is an inquiry that usually entails scrutiny of the unfolding of the trial
    and of the verdict. In
R. v. Rose
(1997), 100 O.A.C. 67 (C.A.), Charron J.A. put the appellate task this way at
    para. 17:

In
    determining this issue, it is necessary to consider the entire trial, including
    the potential prejudicial effect of the evidence, the closing addresses of
    counsel, the judges instructions to the jury and any inference that may be drawn
    from the ultimate verdicts returned by the jury.

[97]

The
    potential prejudicial effect on Mr. Di Trapani from Mr. Gonsalves evidence of
    what Mr. Figliola told him is obvious. She described a big overweight Italian
    named Dan who could carry out a plan to kill her husband while he was walking
    on a wooded pathway known to him. She later told Mr. Gonsalves that the plan
    had been carried out but that she had not paid Dan the $80,000 because he had
    gotten into trouble. Mr. Di Trapanis name is Dan. He is big, overweight and
    Italian. He had gotten into trouble over debts to people who threatened to
    break his legs if he did not repay them. The body of Frank Figliola was found
    beside a wooded pathway that was known to him. In essence, Ms. Figliola told Mr.
    Gonsalves that she had gotten someone with Mr. Di Trapanis name and
    description to carry out her husbands murder in the way it appears to have
    happened.

[98]

The
    force of this evidence was considerably enhanced by the fact that it was given
    not once but twice, first by Mr. Gonsalves in chief, and then in reply, in a
    very emotional videotape of his out of court interview with the police.

[99]

The
    balance of the evidence involving Mr. Di Trapani was circumstantial.
As
    outlined above, there was evidence of contact between him and Ms. Figliola,
    both before and after the murder, including frequent telephone calls in the
    period leading up to it. There was evidence that Mr. Di Trapani received money
    from Ms. Figliola and evidence that he burned some unknown object behind his
    club on the night of the murder. Mr. Di Trapani pointed to innocent
    explanations for each of these. There was also evidence from Mr. Latorre that,
    on the night of the murder, Mr. Di Trapani asked him to drive to the vicinity
    of the murder and then to Ms. Figliolas home and many months later asked him
    for a false alibi for last year. Finally, there was evidence of alleged
    falsehoods in Mr. Di Trapanis statements to the police. However, Mr. Di
    Trapani made no inculpatory statements nor was there any physical evidence
    connecting him to the murder scene.

[100]

By contrast, Mr. Gonsalves evidence
    directly implicated him in the murder. It was the most damning evidence against
    him. As hearsay, it was, of course, inadmissible against him, although not
    against Ms. Figliola.

[101]

Prejudice in this context refers to
    the risk that the jury, having been asked to accept this evidence in trying Ms.
    Figliola, would improperly use it in considering Mr. Di Trapanis guilt. In our
    view, that risk was palpable in the circumstances of this case.

[102]

In his closing address, the Crown
    reminded the jury of the evidence that served to confirm that Ms. Figliola told
    Mr. Gonsalves the details of her husbands murder. While acknowledging that the
    trial judge would tell them that they could not use what Mr. Figliola told
    Mr. Gonsalves against Mr. Di Trapani, the Crown urged the jury to use it
    directly against Ms. Figliola, thus setting up for them the risk described
    above.

[103]

At the end of Mr. Gonsalves
    evidence-in-chief and re-examination, and again in his charge, the trial judge
    delivered an instruction to the jury. He simply directed them to abide by the
    special rule that statements attributed to Ms. Figliola constituted evidence
    against her but could not be used against Mr. Di Trapani even if they described
    what Mr. Di Trapani said or did. Offered as they were, essentially without
    explanation or rationale, these directions would have significantly taxed the
    jurys common sense. Moreover, as the Supreme Court said in
Last
, at para. 46, a proper jury
    instruction can only limit the risk of inappropriate use of evidence. In other
    words, it cannot remove potential prejudice to the accused as a relevant factor
    in the analysis.

[104]

In
R. v. Guimond
, [1979] 1 S.C.R. 960, the Supreme Court of Canada was
    faced with a similar circumstance: an out of court statement admissible against
    one accused and inadmissible against his co-accused, although highly
    prejudicial to that co-accused. In upholding the decision that the two should
    have been tried separately, the majority used language at p. 978 that, as adapted
    to the circumstances here, aptly captures our conclusion: however often the
    jury was told that Ms. Figliolas statements to Mr. Gonsalves did not constitute
    evidence against Mr. Di Trapani, it cannot be said with assurance that one or
    more of the jurors did not convict Mr. Di Trapani on the basis of that
    evidence.

[105]

A separate consideration in
    determining whether the March 8, 2006 order denying severance resulted in an
    injustice is the way it came about. The pre-trial ruling of December 20, 2005
    excluded from Mr. Gonsalves testimony the evidence that Ms. Figliola
    identified Mr. Di Trapani as the man who carried out the murder of her husband.
    That was the rule under which the first eight weeks of the Crowns case was
    defended by Mr. Di Trapani.

[106]

Then, on March 8, as the Crowns
    case approached its conclusion and Mr. Gonsalves was about to be called,
    the trial judge reversed that rule and made clear that this evidence could be
    elicited by the Crown, not once as it turned out, but twice. This reversal was
    not due in any way to Mr. Di Trapani. The trial judge justified the change
    because he said counsel for Ms. Figliola had changed her position from December
    20. Although we think that is far from clear, for present purposes, the
    question is whether the reversal of this ruling, coming when it did,
    contributed to the injustice resulting from the dismissal of the severance
    application.

[107]

In our view, the answer is clearly
    yes. Counsel for Mr. Di Trapani, knowing what he was facing and what he was not
    facing, had laid no foundation with prior witnesses for the undermining of Mr. Gonsalves
    credibility, because, as he put it, that was not his fight in light of the ruling
    of December 20. There was no need for him to worry about the potential
    prejudice to Mr. Di Trapani arising from the improper use of that evidence. On
    March 7, when this arose for the first time and the December 20 ruling was
    effectively reversed, counsel was focusing on the remaining Crown witnesses and
    preparing his defence evidence. To require counsel to turn at that stage to a
    detailed review of eight weeks of evidence to determine how an attack on Mr. Gonsalves
    credibility could be mounted, and with the recall of what witnesses, would have
    simply been impractical. We do not agree with the trial judge that the recall
    of Crown witnesses for new or further re-examination by counsel for Mr. Di
    Trapani was a practical remedy that could have properly addressed the prejudice
    caused by the timing of the reversal of the ruling.

[108]

Moreover, the tactical change it
    would have forced on counsel carried its own problems for Mr. Di Trapani.
    Suddenly mounting a challenge to Mr. Gonsalves credibility would run the risk
    of the jury concluding that his evidence must somehow be harmful to Mr. Di
    Trapani, particularly given that no explanation for the change in tactics could
    be given. We do not agree with the trial judges view that the change in trial
    tactics would carry no risk of negatively influencing the jury.

[109]

Nor would the recall of witnesses
    undo the perception of unfairness to an accused arising from a change, after
    eight weeks of evidence, in one of the significant rules of his trial set at
    the start by the trial judge. This is particularly so since the accused had
    played no part in causing the change.

[110]

The reversal on March 8 of the
    December 20 ruling made admissible Mr. Gonsalves evidence that caused
    particular potential prejudice for Mr. Di Trapani. The timing provided
    important context for the renewed severance application. To deny that
    application at that stage left Mr. Di Trapani with a proposed solution to the
    prejudice caused by the timing of the reversal that in our view was
    impractical, required a change in trial tactics that could realistically have
    negatively influenced the jury, and created a perception of unfairness to him.

[111]

When the consequences for Mr. Di
    Trapani of the order of March 8 denying severance are assessed, we must then
    consider both the consequences of the ruling itself and the consequences of the
    circumstances in which it was made. Taking these together, we have no
    hesitation in concluding that, in the circumstances, the ruling resulted in an
    injustice.

[112]

Having reached that conclusion, it
    would be impossible for us to conclude that there was no miscarriage of
    justice. Hence there is no room for the application of the
proviso
.

[113]

We would therefore allow the appeal and
    set aside Mr. Di Trapanis conviction and order a new trial.

DISPOSITION

[114]

Accordingly, the appeals are
    allowed, the convictions set aside and new trials ordered. Pursuant to s.
    686(8) of the
Criminal Code
, we order
    that there be separate trials.


Signed:           M. Rosenberg J.A.


S. T. Goudge J.A. 

 R. A.
    Blair J.A. 

RELEASED:  MR
    JUNE 17, 2011


