



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Johnson-Lee, 2018 ONCA 1012

DATE: 20181211

DOCKET: C54611

MacPherson, Miller and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Troy Johnson-Lee

Appellant

Lance Beechener and Eva Taché-Green, for the appellant

David Finley and Davin Garg, for the respondent

Heard: October 30, 2018

On appeal from the convictions entered on May 23, 2009 by
    Justice Bruce Glass of the Superior Court of Justice, sitting with a jury.

Paciocco
    J.A.:

[1]

On September 1, 2006, an altercation between two groups flared up in a
    bar. When the bar closed, the two groups met outside. Orin Felix, from one of
    the groups, was fatally stabbed behind a library that was across from the bar. Only
    moments before, Trevor Hunter, another member of the same group, had been stabbed
    in the neck in the bar parking lot. Troy Johnson-Lee, who was with the other
    group, was convicted by jury of second degree murder in the death of Mr. Felix,
    and of attempting to murder Mr. Hunter.

[2]

Mr. Johnson-Lee appeals those convictions claiming that the trial judge
    erred in his instructions to the jury regarding post-offence conduct, and in
    a corrective instruction he provided to the jury.

[3]

I would dismiss his appeal for the reasons that follow.

POST-OFFENCE CONDUCT

[4]

Although circumstantial evidence confirming identification testimony
    provides a formidable case against Mr. Johnson-Lee, post-offence conduct evidence
    played a large role in his prosecution. Evidence was presented that: in his
    initial police statement he provided a false alibi involving his nieces mother,
    Ashley Owen (the Ashley Owen alibi); he lied about the jewelry he was wearing
    on September 1, 2006; and he destroyed the shirt he had been wearing at the bar
    before attempting to pass off to the police a different shirt as the one he wore
    to the bar.

[5]

Mr. Johnson-Lee argues that the trial judge erred in his jury instructions
    relating to this evidence.

[6]

Mr. Johnson-Lee also testified that he was with Latoya Dejonge at around
    the time Mr. Hunter was stabbed, a claim that Ms. Dejonge contradicted in reply
    evidence. During the trial, this was not identified by anyone as post-offence
    conduct but Mr. Johnson-Lee contends that, in the circumstances, the trial
    judge erred by failing to instruct the jury to refrain from using Ms. Dejonges
    contradiction of his claim as post-offence conduct relevant to his guilt.

[7]

I will address each of Mr. Johnson-Lees post-offence conduct grounds of
    appeal, in turn.

(1)

The No Probative Value Limiting Instruction

[8]

First, Mr. Johnson-Lee argues that the trial judge erred by failing to
    give a limiting instruction that the post-offence conduct had no probative
    value. During the trial, Mr. Johnson-Lee testified and admitted to having
    assaulted Mr. Felix before another man, Anthony Bailey, unexpectedly brandished
    a knife and stabbed Mr. Felix. Mr. Johnson-Lee contends that, given this
    admission, the post-offence conduct that the Crown relied on to confirm Mr.
    Johnson-Lees involvement in the offences charged is equally explained as an
    attempt by Mr. Johnson-Lee to avoid being implicated in the admitted assault. Because
    the post-offence conduct can be equally explained on this basis, a no
    probative value limiting instruction should have been given to the jury, as
    required by
R. v. Arcangioli
, [1994] 1 S.C.R. 129.

[9]

He also argues that even if his evasive conduct is not equally explained
    by the admitted assault, his evasive conduct is equally consistent with
    involvement in either the stabbing of Mr. Hunter or the stabbing of Mr. Felix.
    Since it was open to the jury to reject the Crown theory that one person committed
    both stabbings, this ambiguity denudes the evidence of probative value as proof
    of guilt by Mr. Johnson-Lee on either charge.

[10]

I
    do not agree with either submission. I will begin with the latter argument.

[11]

The
    Crown theory was that Mr. Johnson-Lee committed both offences. There was an
    evidentiary foundation for that theory. The admittedly false Ashley Owen alibi,
    in particular, was post-offence conduct evidence relevant to both offences. I
    do not accept, in these circumstances, that the possibility that different
    people committed the two offences undermines the probative value of proof that
    Mr. Johnson-Lee took evasive action to distance himself from those offences, particularly
    when the bulk of the eyewitness testimony supported the theory that one person
    committed the two offences.

[12]

The
    first no probative value argument is no more persuasive. Although there will
    be uncommon situations where post-offence conduct is ambiguous enough to have
    no probative value, a no probative value limiting instruction is not required
    where a jury can reasonably infer that the post-offence conduct is more
    consistent with the offence charged
: R. v. S.B.1
,

2018 ONCA
    807, at para. 72. This is the case here. The post-offence conduct was not as
    simple as spontaneous flight from a larger altercation where someone stabbed
    the victim, as it was in
Arcangioli
. The evasive conduct here occurred
    after Mr. Johnson-Lee was aware that the police were investigating a homicide and
    attempted homicide, and could therefore be logically linked to that investigation.
    Moreover, the elaborate measures Mr. Johnson-Lee is alleged to have taken are
    out of proportion to culpability for the admitted assault. In these
    circumstances a no probative value instruction would have been an error.

(2)

The Absence of an Alternative Explanation Instruction

[13]

Mr.
    Johnson-Lee also contends that the trial judge erred by failing to give a
    cautionary instruction to the jury about the danger in not considering
    alternative explanations for the post-offence conduct.

[14]

In
    my view, there was no need in this case for a boiler-plate caution to the jury
    to consider alternative explanations. Mr. Johnson-Lee testified, providing straight-forward,
    specific explanations for his post-offence conduct. The trial judge instructed the
    jury to consider these explanations. At best, a generic instruction to consider
    alternative explanations would have been redundant. At worst, it could be seen
    as an invitation to consider explanations inconsistent with Mr. Johnson-Lees
    testimony, by implication casting doubt on his evidence.

(3)

The Absence of an Instruction to avoid Circular Reasoning

[15]

Mr.
    Johnson-Lee also contends that a cautionary instruction should have been given,
    warning the jury not to use the post-offence conduct to leap to a conclusion of
    guilt. A jury will use post-offence conduct to leap to a conclusion of guilt where
    it examines the post-offence conduct in isolation, infers from it that the
    accused is acting as a guilty person would, and then uses the inference that
    the accused is acting as a guilty person would as proof of guilt. Reasoning in
    this way is circular. The concern is that the inference will drive the
    conclusion before all of the evidence is considered. The trial judge gave no cautionary
    instruction to avoid reasoning in this way.

[16]

Mr.
    Johnson-Lee argues that this error was exacerbated because the trial judge also
    misdirected the jury as in
R. v. Hall
, 2010 ONCA 724, 263 C.C.C. (3d)
    5, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 499, by using
    language that actually invited the prohibited circular reasoning. The trial
    judges words do largely track the impugned passage in
Hall
. Specifically,
    the trial judge said:

If you find that Troy Johnson-Lee fabricated, in other words,
    made up that version with respect to Ashley Owen because he was aware that he
    did what is alleged, you may take that finding into account, along with the
    rest of the evidence, in deciding whether Crown counsel has proven the guilt of
    Troy Johnson-Lee beyond a reasonable doubt.

[17]

The
    concern is that this kind of direction can be read as inviting the jury to
    reason in a circular fashion by using a finding of fabrication to draw an
    inference of consciousness of guilt  in this case that Mr. Johnson-Lee was
    aware that he did what was alleged  and only
then,
    after drawing that inference,
to go on to look at the rest of the
    evidence.

[18]

While
    the jury charge was not optimal, a jury charge must be viewed functionally when
    appealed:
R. v. Jacquard
, [1997] 1 S.C.R. 314, at pp. 320-21. When
    this is done, in my view no reversible error occurred.

[19]

It
    is convenient to begin with my conclusion that despite similarities in language
    between the impugned instruction that was provided in this case and the instruction
    in
Hall
, no
Hall
error occurred here.

[20]

As
    Watt J.A. pointed out in
R. v. Saleh
, 2015 ONCA 23, 319 C.C.C. (3d)
    373, at para. 242, even the impugned passage in
Hall
correctly
    communicates that before the post-offence conduct evidence is relied upon, it
    must support the inference that the accused acted as he did because he was
    conscious of his guilt. In other words, it describes the inference that is a
    prerequisite to using the post-offence conduct evidence as proof of guilt, even
    when considered along with all other evidence. In my view, when the impugned
    passage in this case is considered, in context, that is what the jury would
    take from it. The jury would see it as an instruction about the prerequisite
    inference, not as an invitation to draw that inference before considering other
    evidence.

[21]

First,
    immediately after the impugned passage the trial judge told the jury that if
    they were unable to find that Mr. Johnson-Lee made up the alibi because he was
    aware that he did what is alleged, they were not entitled to use this evidence
    as proof of guilt. When this passage and the impugned passage are taken
    together, clear emphasis is being given to the inference to be drawn, not the
    order in which reasoning should occur.

[22]

In
    addition, this jury was instructed to decide the case after you have considered
    the evidence with your fellow jurors and applied the law. They were told the
    presumption of innocence stays throughout the case and that the Crown had the
    burden of proof [f]rom start to finish, and that they should decide Mr.
    Johnson-Lees guilt at the end of the case, after considering all the
    evidence. They were told to consider  all the evidence presented during the
    trial, that it was their duty to consider all of the evidence, and that it was
    their job  to decide what conclusions you will reach based upon the evidence
    as a whole, both direct and circumstantial.

[23]

In
    this context, when the impugned passage is viewed functionally, the jury would
    not have treated it as an invitation to engage in the prohibited, circular
    reasoning. No
Hall
error occurred.

[24]

Nor,
    was the failure by the trial judge to provide an explicit caution to the jury
    to avoid circular reasoning fatal. As indicated, the charge as a whole
    emphasized the jurys obligation to consider the evidence as a whole before
    inferring guilt.

[25]

Moreover,
    the proper inference available to the jury was simple and obvious, reducing the
    risk that the evidence would be used improperly. The only contested issue in
    the case was identity. The trial judges instruction to consider whether Mr.
    Johnson-Lee fabricated the alibi because he was aware that he did what is alleged
    would have been understood by the jury, in that context, as referring to his identity
    as the assailant. The jury would have understood that they were being invited
    to infer that Mr. Johnson-Lee made up the alibi to hide his involvement.

[26]

Finally,
    defence counsel made no objection to the instruction given. This may well have
    been a tactical decision to avoid inviting attention to the inculpatory
    inferences that the elaborate attempts by Mr. Johnson-Lee to distance himself
    from the investigation invited. I would not give effect to this ground of
    appeal.

(4)

The Failure to Correct the Concocted Alibi Submission

[27]

Mr.
    Johnson-Lee argues that the trial judge erred by failing to correct the Crowns
    improper closing submission that Mr. Johnson-Lee concocted his testimony
    that he was with Ms. Dejonge outside of the bar.

[28]

The
    context is important to this ground of appeal.

[29]

During
    the trial, Mr. Johnson-Lee testified and acknowledged that the Ashley Owen
    alibi that he provided to the police was false. In his testimony he offered a
    new account of how he got to, and ultimately left the bar.

[30]

He
    said that a woman named Latoya, his friend Ryan Daleys girlfriend, drove him
    to the bar in a blue Honda Accord. Mr. Daley and Daniel Allen were also in the
    car. When the bar closed, he exited the bar with this same group, along with Mr.
    Bailey. He, Ms. Dejonge and Mr. Daley turned left and stood on the sidewalk
    about five feet from the door, while Mr. Bailey and Mr. Allen went right.

[31]

Other
    friends joined Mr. Johnson-Lee while Ms. Dejonge remained standing beside him.
    While members of that group were talking amongst themselves, a scuffle broke
    out in the parking lot. The parking lot was next to the sidewalk where Mr. Johnson-Lees
    group was standing.

[32]

Mr.
    Johnson-Lee was watching the parking lot fight. Mr. Bailey was involved, and
    appeared to strike someone in the head with a bottle. Mr. Bailey then ran with other
    young men across the street to the library. At that point, Mr. Johnson-Lee
    decided to follow Mr. Bailey, and began to fight with Mr. Felix. Others joined
    in.

[33]

After
    Mr. Johnson-Lee was distracted from the fight, Mr. Bailey suddenly stabbed Mr.
    Felix and then chased Mr. Felix while brandishing a knife. Mr. Johnson-Lee
    testified that he then ran back to the parking lot and climbed into Ms.
    Dejonges blue Honda Accord and she drove him and several others back home. He
    learned later that Mr. Felix had died.

[34]

When
    Crown counsel cross-examined Mr. Johnson-Lee, she sought further details about
    Mr. Johnson-Lees time with Ms. Dejonge. However, she never challenged Mr.
    Johnson-Lees claim about being with Ms. Dejonge on the night in question.

[35]

Despite
    this, the Crown called Ms. Dejonge as a reply witness. Ms. Dejonge testified
    that she walked to and from the bar that night, did not own or have access to a
    blue Honda Accord, was not Mr. Daleys girlfriend, did not know Mr. Johnson-Lee,
    had not driven him or his friends anywhere, and had not been with Mr.
    Johnson-Lee outside of the bar after it closed.

[36]

During
    her closing address to the jury, Crown counsel placed great significance on Ms.
    Dejonges contradictions of Mr. Johnson-Lees testimony. She said it was proof
    that Mr. Johnson-Lee concocted a false story based on the security camera
    videos, in which Ms. Dejonge could be seen at the bar with Mr. Daley. Crown
    counsel then said with respect to Mr. Johnson-Lees evidence about Ms. Dejonge:
    Mr. Johnson-Lee is providing yet another false alibi like he did when he told
    the police that he was with Ashley Owen at the bar that night.

[37]

Shortly
    after, Crown counsel alluded again to the Ashley Owen lie that he told  to
    cover up for his own crimes. Crown counsel then stated that Mr. Johnson-Lee
    had two years to come up with the testimony he gave, including his testimony
    about Ms. Dejonge. She went on to urge that this was not a minor lie, but a
    significant one:

I mentioned it right at the beginning of this closing, she is
    the new alibi. She is purportedly one of [the] people standing outside of the
    bar chit-chatting for ten minutes while Trevor Hunter is getting killed. Sorry,
    stabbed. While Trevor Hunter is getting stabbed he is there with her. Shes
    more than just a ride to the bar. This is more than just a simple lie, ladies
    and gentlemen. This is a new concocted alibi. Thats what this is.

[38]

Mr.
    Johnson-Lee urges that by referring to Ms. Dejonge as the new concocted alibi
    and by equating Ms. Dejonges contradiction of Mr. Johnson-Lees testimony with
    the false Ashley Owen alibi, Crown counsel was inviting the jury to infer that,
    like he did with the false Ashley Owen alibi, Mr. Johnson-Lee concocted his
    testimony regarding Ms. Dejonge in order to hide his guilt of the offences
    charged. In other words, Crown counsel was asking the jury to use it as proof
    of guilt.

[39]

There
    is no question that although she did not say this overtly, Crown counsels
    comments left the suggestion that Mr. Johnson-Lees testimony regarding Ms. Dejonge
    could be used as proof of his guilt. In my view, it was not so much the use of
    the phrase concocted alibi, as it was her remark that this is more than just
    a simple lie and her comparison of Mr. Johnson-Lees testimony regarding Ms.
    Dejonge to the false Ashley Owen alibi, which was available as proof of guilt.

[40]

Yet,
    Mr. Johnson-Lee contends that the law would not permit his testimony regarding
    Ms. Dejonge to be used as post-offence conduct in this way. He argues that it
    is not appropriate to infer that the accused has concocted a story to hide
    his guilt, unless there is independent evidence of fabrication:
R. v.
    OConnor
(2002), 62 O.R. (3d) 263 (C.A.). He maintains that since there is
    no independent evidence that he fabricated his account about being with Ms.
    Dejonge, the invitation extended by Crown counsel to the jury to use Ms.
    Dejonges contradiction of his testimony as proof of guilt was contrary to law.
    He submits that the trial judge was obliged to instruct the jury that they were
    not to use his testimony regarding Ms. Dejonge as post-offence conduct
    indicative of guilt, and the trial judge erred by failing to do so.

[41]

I
    do not agree that Mr. Johnson-Lees testimony regarding Ms. Dejonge is
    incapable in law of supporting an appropriate post-offence conduct inference. The
    admonition in
OConnor
to refrain from inferring guilt from
    disbelieved evidence absent independent confirmation of fabrication is not a
    technical corroboration requirement. It is a safeguard, calling for independent
    and meaningful support for a finding of concoction before an inference of guilt
    is invited to be drawn from disbelieved exculpatory evidence. In the
    circumstances here, that standard was met.

[42]

First,
    there was a solid foundation linked directly to Mr. Johnson-Lees testimony for
    disbelieving what he was claiming: Ms. Dejonge flatly contradicted Mr.
    Johnson-Lees assertion that he was with her when Mr. Hunters stabbing would
    have occurred. Independent of that, this was also a new exculpatory account by
    Mr. Johnson-Lee about where he was at the time of Mr. Hunters stabbing,
    offered in place of an exposed, prior false alibi about where he was at the
    time of Mr. Hunters stabbing. Finally, by its nature, if Mr. Johnson-Lees testimony
    regarding Ms. Dejonge was a lie, it was an exculpatory lie, entirely capable of
    supporting a logical inference that he told this lie conscious of his guilt in
    order to avoid being implicated in Mr. Hunters stabbing. In my view, these
    features together amount to sufficient independent confirmation that Mr.
    Johnson-Lees testimony regarding Ms. Dejonge was fabricated to avoid guilt. This
    satisfies the
OConnor
principles.

[43]

Of
    course, before inviting an inference of guilt from what it believes to be post-offence
    conduct evidence, the Crown should first pass its intention by the trial judge
    for a ruling that the evidence is admissible for that purpose. This should have
    happened here, but did not. In the absence of such a ruling, Mr. Johnson-Lees
    testimony regarding Ms. Dejonge was not properly available as proof of guilt.  However,
    even though the trial judge failed to directly instruct the jury not to use
    this evidence to draw an inference of guilt, this is not a case where the jury
    was apt to do so.

[44]

It
    is important to recognize that Crown counsel did not expressly invite the
    prohibited inference. The risk at play was that the jury would infer from what
    the Crown said that it could do so. In this context, what the trial judge did
    say was sufficient to remove that risk.

[45]

Specifically,
    when he summarized the position of the Crown, the trial judge stated that the
    Crowns position was that Ms. Dejonges contradiction of Mr. Johnson-Lees
    account meant that [h]is version deserves no weight whatsoever. This is a
    permissible inference about credibility rather than an impermissible inference
    of guilt. In contrast, when the trial judge instructed the jury on the Ashley
    Owen alibi he told them it could be used as post-offence conduct evidence
    supporting an inference of guilt. In my view, the jury would not have missed
    the contrast.

[46]

For
    these reasons, as well as the failure by defence counsel to object to the
    absence of a warning, I would dismiss this ground of appeal.

THE CORRECTIVE INSTRUCTION

[47]

Defence
    counsel argued that Mr. Johnson-Lee was being truthful about Ms. Dejonge and therefore
    suggested that Ms. Dejonge was lying when she claimed that she did not know him.
    To advance this position defence counsel challenged the jury to ask itself how Mr.
    Johnson-Lee could have known that Ms. Dejonges name was Latoya, if he was
    lying and she was telling the truth. Defence counsel had no evidentiary basis
    for suggesting that the only way Mr. Johnson-Lee could have known Ms. Dejonges
    name was through his prior familiarity with her, yet she asked the jury to draw
    that inference.

[48]

Crown
    counsel, aware that Ms. Dejonges name was included in the disclosure provided
    to Mr. Johnson-Lee long before the trial, argued that defence counsel had
    misled the jury by suggesting that Mr. Johnson-Lee had no other way of knowing
    her name than having previously known her. Defence counsel checked and
    confirmed to the court that a statement from Ms. Dejonge was in fact included
    in the disclosure.

[49]

However,
    defence counsel assured the trial judge, from the bar, that neither she nor Mr.
    Johnson-Lee had seen Ms. Dejonges statement in the disclosure material before
    he testified.

[50]

The
    Crown was prepared to accept this as true but argued that the defence
    submission still required correction because it was nonetheless misleading. There
    are other places where Mr. Johnson-Lee could have learned Ms. Dejonges name,
    including at the bar when she was with Mr. Johnson-Lees friend Mr. Daley. Crown
    counsel offered to draw this to the jurys attention in her submissions in
    order to remedy the misleading impression defence counsel had left.

[51]

The
    trial judge nonetheless concluded that, given Ms. Dejonges name was in the
    disclosure, there was a possibility that Mr. Johnson-Lee could have learned her
    name that way. The jury should know this. He decided ultimately that he would
    correct the problem himself. He issued a corrective instruction directing the
    jury that it was an agreed fact that Troy Johnson-Lee has been in the possession
    of Latoya Dejonges statement for more than a year in his disclosure package.

[52]

The
    Crown then made her closing submissions to the jury. She brought up the
    disclosure that had been made, and argued: And thats the other way he could
    have known the name. Make no mistake.

[53]

Mr.
    Johnson-Lee claims that the trial judges corrective instruction was unfair and
    prejudicial, undermining the fairness of the trial and thereby causing a
    miscarriage of justice. He urges that not only did the correction go farther
    than required, it created the misleading impression that Mr. Johnson-Lee had
    personally viewed the disclosure. He argues that this undermined the integrity
    of defence counsel in the eyes of the jury. They could not fail to conclude that
    she had urged them to find that there was no way Mr. Johnson-Lee could have known
    the name Latoya other than through prior familiarity, even though she knew that
    Mr. Johnson-Lee had access to Ms. Dejonges name through disclosure.

[54]

Mr.
    Johnson-Lee argues that the unfairness of the corrective instruction was aggravated
    because the Crown violated the rule in
Browne v. Dunn
(1893), 6 R. 87
    (H.L.) by not confronting Mr. Johnson-Lee with Ms. Dejonges claim that she was
    not with him and did not know him.

[55]

In
    support of the unfairness submission, Mr. Johnson-Lee has also brought an
    application to admit fresh evidence confirming that Mr. Johnson-Lee had not
    learned Ms. Dejonges name from the disclosure. He told his trial lawyer about Ms.
    Dejonge before the disclosure was received.

[56]

Finally,
    Mr. Johnson-Lee argues that it was an error of law for the trial judge to
    invite the jury to infer that Mr. Johnson-Lee tailored his evidence to the
    Crown disclosure.

[57]

It
    is convenient to consider the arguments by first addressing the
Browne v.
    Dunn
submission, the fresh evidence, and the error of law submission. I
    will begin with the latter.

(1)

The Error of Law Submission

[58]

It
    is generally improper for a prosecutor to suggest either during
    cross-examination, or in closing remarks, that the testimony of the accused has
    been scripted using disclosure:
R. v. Bouhsass
(2002), 62 O.R. (3d)
    103 (C.A.), at para. 12;
R. v. Peavoy
(1997), 34 O.R. (3d) 620 (C.A.),
    at p. 625. Permitting this would convert a constitutional right into a trap,
    and raise concerns about the right to silence:
R. v. John
,

2016
    ONCA 615,

133 O.R. (3d) 360,

at paras. 60-61, leave to appeal
    to S.C.C. refused, [2017] S.C.C.A. No. 101.

[59]

However,
    questions relating to disclosure are not always prohibited. In
R. v. White
(1999), 42 O.R. (3d) 760 (C.A.), for example, the manner in which the accused
    testified raised the possibility that the jury would use phone records admitted
    into evidence as confirming his testimony. Cross-examination showing that the
    accused had access to those phone records through disclosure before testifying
    was therefore appropriate. No allegation of tailoring was being made. The
    cross-examination was designed to expose a source of knowledge that had fallen
    into issue.

[60]

Even
    though this case involves submissions and not cross-examination, it is similar.
    Here the disclosure was not mentioned to suggest that Mr. Johnson-Lee tailored
    his evidence to fit the disclosure. It was referred to for the much more benign
    purpose of identifying an alternative source of relevant information for Mr.
    Johnson-Lee. While this purpose, on its own, may not always justify referring
    to disclosure, in this case it was defence counsel who made Mr. Johnson-Lees
    knowledge of the name Latoya an issue. Mr. Johnson-Lee is hardly in a position
    to complain that information he made relevant by the tactics his counsel
    employed was relied upon.

[61]

No
    legal rule was violated in this case.

(2)

The
Browne v. Dunn
Submission

[62]

In
    my view,
Browne v. Dunn
was violated when the Crown failed to confront
    Mr. Johnson-Lee with Ms. Dejonges claims that she was not with him outside of
    the bar, did not drive him there or back, and did not even know him. This violation
    raises concerns about the propriety of the Crown calling Ms. Dejonge as a reply
    witness.

[63]

Yet
    no
Browne v. Dunn
objection was raised by Mr. Johnson-Lees trial
    counsel, and no objection was made to Ms. Dejonge testifying in reply. Mr. Johnson-Lee
    does not now raise these as independent grounds of appeal. He does argue,
    however, that the Crowns failure to confront him in cross-examination with Ms.
    Dejonges claims aggravated the unfairness of the corrective instruction
    because Mr. Johnson-Lee was left with no opportunity to respond.

[64]

In
    my view, the failure to comply with
Browne v. Dunn
had no bearing on
    the corrective instruction. The issue of how Mr. Johnson-Lee could have learned
    Ms. Dejonges name came up for the first time during the closing submissions of
    defence counsel, after Mr. Johnson-Lees cross-examination was completed. There
    is no reasoned basis for believing that, had Mr. Johnson-Lee been confronted
    with Ms. Dejonges claims while he was testifying this would have led Mr.
    Johnson-Lee to explain that he had not learned her name from the disclosure.

(3)

The Fresh Evidence

[65]

The
    fairness of the exercise of a trial judges discretion in providing a
    corrective instruction is to be evaluated based on the information available to
    the trial judge at the time. The fact that it proved to be the case that Mr.
    Johnson-Lee knew Ms. Dejonges name before disclosure was received adds little
    in examining the fairness of the trial judges decision, since that fact was
    not known to the trial judge when he exercised his discretion.

[66]

Moreover,
    it is important not to lose sight of the context when considering the effect of
    this fresh evidence. Defence counsel invited the jury to accept its speculative
    inference that Mr. Johnson-Lees prior familiarity with Ms. Dejonge was the only
    possible source of his knowledge of her first name. The trial judges
    corrective instruction was offered to remove the unfairness of that invitation
    by showing another possible source of information. It was not offered as proof
    of how Mr. Johnson-Lee actually learned her name. Showing now that Mr.
    Johnson-Lee did not actually learn Ms. Dejonges name from the disclosure does
    not change the fact that, at the time of the trial, it was possible that he had
    learned her name from the disclosure.

[67]

In
    my view, the fresh evidence adds little.

(4)

Did the Trial Judges Exercise of Discretion Render the Trial Unfair?

[68]

A
    trial judges discretion to give a corrective instruction is to be given
    deference. In evaluating the choice the trial judge made, it is important to
    bear in mind that, although he was entitled to do so, the trial judge was not bound
    to accept defence counsels assurance from the bar that neither she nor Mr.
    Johnson-Lee had seen the disclosure. As I have already indicated, on the
    information before the trial judge, defence counsel had challenged the jury
    with the speculative suggestion that the only way Mr. Johnson-Lee could have
    known Ms. Dejonges name was prior familiarity, when the Crown had in fact furnished
    Mr. Johnson-Lee, through his lawyer, with disclosure that contained Ms. Dejonges
    name.

[69]

In
    my view, however, the trial judge should not have used the possibility that Mr.
    Johnson-Lee had learned Ms. Dejonges name from disclosure to neutralize
    defence counsels invitation to the jury to speculate. Doing so created the
    risk that the credibility of defence counsel would be damaged in the eyes of
    the jury. I agree with Mr. Johnson-Lee on this point. The jurors might well have
    concluded that they were being manipulated through defence counsels suggestion
    that Mr. Johnson-Lee could only have learned Ms. Dejonges name from prior
    familiarity, even though defence counsel knew full-well that he could have
    obtained the name from disclosure. The trial judge did not have to engage this
    risk. He could simply have told the jury to disregard the defence submission
    because it was not grounded in evidence. Or he could have left it to the Crown
    to point out the common sense possibility that Mr. Johnson-Lee learned Ms.
    Dejonges name while at the bar.

[70]

I
    also agree that the wording of the corrective instruction went beyond what was
    agreed. Defence counsel admitted Ms. Dejonges name was in the disclosure. She
    did not admit that Mr. Johnson-Lee had seen that disclosure. Indeed, she denied
    he had, and there was no proof that he had. Yet the wording of the corrective
    instruction was apt to suggest to the jury that Mr. Johnson-Lee had personally seen
    this material. This impression would have been made worse by Crown counsels
    submission, when inviting the jury to consider disclosure as a possible source
    of his knowledge, that they should [m]ake no mistake.

[71]

For
    those reasons, the exercise of the trial judges discretion was unfortunate.
    The material question, however, is whether it rendered the trial unfair. If an
    error deprives the accused of a fair trial, it constitutes a miscarriage of
    justice within the meaning of s. 686(1)(
a
)(iii) and a reversible
    error will have occurred
: R. v. Arradi,

2003
    SCC 23, [2003] 1 S.C.R. 280,
at para. 39.

[72]

A
    court of appeal should carefully weigh the whole of the circumstances of the
    case in determining whether the trial has been rendered unfair:
R. v. Khan,

2001

SCC

86,
[
2001
] 3 S.C.R. 823, at para. 72. However, the trial cannot be
    held to a standard of perfection, provided it remains fair in reality and in
    appearance:
Khan
, at para. 72.

[73]

There
    is no limit on the particular type of error that will constitute a miscarriage
    of justice:
R. v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at p. 541;
Khan,
at para. 74
.
    An error or misconduct that could well have affected the jurys assessment of
    guilt or innocence will suffice:
Reference re Milgaard (Can.)
,
    [1992] 1 S.C.R. 866, at p. 873. So, too, will conduct that is so egregious so
    as to bring the administration of justice into disrepute or to lead reasonable
    people to believe that the appearance of justice ha[s] been undermined:
R.
    v. Spiers
,
2012 ONCA 798
, 113 O.R. (3d) 1, at
    para. 27. These are the relevant fair trial inquiries for consideration in this
    case. Applying those considerations, no miscarriage of justice can be found.

[74]

First,
    it is clear, in my view, that this episode would have had no impact on the jury
    verdict reached. Even though this was an identification evidence case
    prosecuted in the absence of line-up identifications, the case against Mr.
    Johnson-Lee was formidable. Credible and reliable eyewitnesses to the stabbings
    offered discerning descriptions of the stabber of each victim that fit only Mr.
    Johnson-Lee amongst all of the people in the bar where the confrontation began.
    Any points of distinction were negligible. There was evidence that Mr.
    Johnson-Lee had been involved in that earlier confrontation, and, prior to the
    stabbings, had expressed regret that he had not broken a bottle over the head
    of one of the members of the victims group. He had Mr. Felixs blood on his
    pants and the forensic examination of the knife, while not supporting the Crowns
    case, could not rule out the Crowns theory. Mr. Johnson-Lees credibility did
    not bear up to the evidence in the case, and he concocted the Ashley Owen alibi
    for both stabbings. There was evidence that he concocted a lie about his
    appearance and actively attempted to mislead the police about the shirt he was
    wearing. In this context, there is no realistic possibility that the outcome of
    this case turned on the jurys belief that Mr. Johnson-Lee learned the name
    Latoya from disclosure. Nor is there any basis for believing that his
    conviction could be related to distrust of defence counsels submissions that may
    have been caused by the corrective instruction. Beyond any peradventure, Mr.
    Johnson-Lee was convicted because of the legitimate force of the evidence.

[75]

Nor
    was the conduct of the trial judge sufficiently egregious, or its consequences
    to Mr. Johnson-Lee sufficiently prejudicial, to bring the administration of
    justice into disrepute or to undermine the appearance of justice. The trial
    judge made an unfortunate judgment call late in the trial in response to an
    unfortunate tactical choice made by defence counsel, in an otherwise fairly
    conducted trial. And while the trial judges choice had the undesirable effect
    of discrediting defence counsel, this was an isolated incident brought about in
    an attempt to correct counsels own indiscretion, and its effect was tempered
    by the appearance that she had joined in making the correction.

[76]

In
    my view, the trial was not rendered unfair by the unfortunate corrective instruction,
    and there was no miscarriage of justice.

CONCLUSION

[77]

I
    would dismiss the appeal.

Released: December 11, 2018 (J.C.M.)

David M. Paciocco J.A.

I agree. J.C. MacPherson J.A.

I agree. B.W. Miller J.A.


