



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Taylor,
    2015 ONCA 448

DATE: 20150619

DOCKET: C54096

Watt, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daine Taylor

Appellant

John Rosen and Paul Alexander, for the appellant

Amy Alyea, for the respondent

Heard: November 3, 2014

On appeal from the conviction entered by Justice David
    Salmers of the Superior Court of Justice, sitting with a jury, on March 11,
    2009.

Watt J.A.:

[1]

Fidel Palacios went to a party. So did his friend, Kethees Nagarajah.

[2]

Palacios got beaten up at the party. At least twice. Nagarajah had
    nothing to do with any beating.

[3]

After the second beating, Palacios made a telephone call. He called
    Daine Taylor who lived with and was engaged to Palacioss sister.

[4]

Soon after the call, Taylor and several others drove onto the street
    where the party was held. Palacios joined them. Within minutes, Nagarajah was
    dead. Somebody had stabbed him through the heart.

[5]

A jury, satisfied beyond a reasonable doubt that Taylor stabbed
    Nagarajah to death, found him guilty of second degree murder.

[6]

Taylor appeals. He advances several grounds of appeal which he says
    require a new trial. These reasons explain why I disagree with his complaints
    and would dismiss his appeal.

THE BACKGROUND FACTS

[7]

The evidence adduced at trial, which was circumstantial, is at best
    imprecise. A brief summary of its essential features is sufficient with greater
    detail provided where necessary in connection with specific grounds of appeal.

The Party

[8]

Pameela Bisram, a grade 12 student, hosted a birthday party in her
    parents basement. Her parents were home. Among those invited were Nagarajah,
    Palacios and Pameelas boyfriend Atiq Alli, who invited Ameer Mohammed and
    Majid Baig.

The First Fight

[9]

Alli learned that Pameela had been in the washroom with Palacios. Alli
    was furious and confronted Palacios outside the house. He easily bested
    Palacios in the fight.

The Ejection of Palacios

[10]

The
    partygoers who had seen the fight between Alli and Palacios returned to the
    basement. Palacios was very upset. He yelled. He cursed. He caused a scene. He
    picked up a steak knife and brandished it. Somebody took the knife away from him.

[11]

Several
    partygoers, including Palacioss friend, Nagarajah, escorted Palacios from the
    party and offered to drive him home. Palacios refused the offer. He walked down
    the street away from the party. The other guests returned to the basement.

Palacioss Return and the Second
    Fight

[12]

As
    several party guests stood smoking outside the Bisram home, Palacios walked
    back towards the house. He was talking on a cellphone. He asked for a
    cigarette. No one offered him one.

[13]

Palacios
    said something that angered Mohammed. Another fight began. Nagarajah and two
    others broke it up. Palacios got up from the ground and walked towards the
    street. He was angry at first, then remorseful.

[14]

Palacioss
    friends followed him as he walked away from the Bisram home. They offered to
    walk him home. Once again, he declined and walked towards Highgate Public
    School.

The Smoke Break

[15]

Several
    other guests, including Alli, left the basement and stood around outside the
    Bisram home smoking.

The Phone Call to Taylor

[16]

Taylor
    lived with Palacioss sister in an apartment in the same building in which
    Palacios lived with his mother. On the evening of the party at the Bisram home,
    Taylor was at home with his friend, Dion Clarke, and some of Clarkes friends 
    Kirk Gomez, Kristian Rajroop and Ryan Resaul.

[17]

Palacios
    telephoned Taylor. He told Taylor that he had been in a fight and asked Taylor
    to pick him up near Highgate Public School. Clarke told Taylor that he knew the
    area around the school. Taylor agreed to pick up Palacios.

[18]

Taylor
    did not go alone. Taylor and Rajroop went in one car. Rajroop took a golf club
    with him. Gomez drove another car, with Clarke and Resaul as passengers. Resaul
    brought a bottle.

[19]

Gomez,
    Rajroop and Clarke denied any plans beyond picking up Palacios. Despite the items
    brought by Resaul and Rajroop, the witnesses claimed they were not looking for
    a fight. Resaul died in an unrelated accident prior to trial.

The Pick Up

[20]

When
    the two vehicles approached Highgate Public School, Palacios was standing with
    Ryan James, one of the partygoers. Palacios ran to Taylors car and got in the
    rear seat. His face was bruised and he was crying.

The Cars Arrive on Upton Crescent

[21]

The
    Bisram home is on Upton Crescent, a street that curves to the south of that
    residence. The two cars pulled over with Taylor in the lead. The partygoers,
    who were standing on a lawn near the Bisram residence, saw the vehicle stop and
    their occupants, including Palacios, get out together.

[22]

Palacios
    pointed at Alli and said it was that guy over there. Palacios picked up a
    cricket bat that was lying on the ground and ran towards the Bisram house.
    Taylor ran after Palacios.

[23]

When
    the partygoers saw the occupants piling out of the cars, they headed back
    towards the Bisram residence, at first walking, then running. Some went back
    into the house, others fled elsewhere.

The Attack
    on Alli

[24]

A
    man wearing a black hooded sweatshirt and swinging a sword, like a Katana,
    attacked Alli. The sword appeared to be about 18 inches long, the length of Allis
    forearm. The blow slashed Allis sweater but did not strike his body. The
    nature of the blow caused Alli to think that his assailant could well have cut
    his own leg with the sword.

[25]

Taylor
    owned a ceremonial sword, a Katana. He wore a black hooded sweatshirt the night
    Alli was attacked.  Shortly thereafter he went to a hospital where he received
    sutures for a cut to his leg.

The Death of the Deceased

[26]

When
    the cars arrived at Upton Crescent, Nagarajah was outside the Bisram home with Alli
    and several others. The partygoers, including Nagarajah, scattered as the
    occupants emerged from the vehicles. Within minutes, Nagarajah collapsed in a
    pool of blood on the basement stair landing. He had been slashed across the
    face and stabbed in the chest. The chest wound, which penetrated his heart, was
    11 centimetres deep.

The Whereabouts of Taylor

[27]

Apart
    from the circumstantial evidence that tends to show that it was Taylor who
    swung the sword at Alli, there was no evidence that tended to show Taylors whereabouts
    after the attack on Alli until, minutes after their arrival at the Bisram house,
    Taylor was seen limping back to his car.

Palacioss Third Fight

[28]

After
    Nagarajah had collapsed on the landing, Bisram hurried upstairs to the porch
    where she saw Palacios. She shook Palacios and demanded to know what had
    happened. He responded by striking her in the stomach with a bat. Palacios then
    got into a fight on the lawn with Baig. Rajroop broke up the fight. Palacios was
    put in one of the cars, which drove away.

The Subsequent Conduct and Findings

[29]

Taylor
    enlisted his friend, Craig Chung, to drive him home after his wound had been
    sutured. By then, the police had arrived at the apartment building where Taylor
    lived. The men took a detour to Chungs house where they stayed the remainder
    of the night.

[30]

The
    day after Nagarajah had been stabbed to death, Chung drove the appellant and
    Resaul to a pond near the appellants parents home. A knife was removed from a
    glass case and thrown into the water. Police later recovered the knife with Chungs
    assistance. A glass case, empty, was found in the glove compartment of the
    appellants car.

[31]

Police
    also recovered seat covers for the appellants car and a golf club from the
    appellants bedroom at his parents home.

The Positions of the Parties at
    Trial

[32]

Nobody
    testified that they saw Taylor stab Nagarajah to death. The case for the Crown
    was entirely circumstantial. The trial Crown contended that the appellant
    attacked both Alli and the deceased who were standing next to each other
    outside the Bisram home. The appellant had the opportunity and means to kill
    the deceased and the motive to do so  to avenge the treatment Palacios had
    received. The appellant confessed his participation to both Gomez and Chung and
    directed the disposal of the knife, only to be frustrated by Chungs disclosure
    of it to the police.

[33]

Counsel
    for the appellant at trial submitted that the case for the Crown fell short of
    the required standard of proof. No eyewitness saw the stabbing. The evidence of
    opportunity was scanty and did not even establish that the appellant swung the
    sword at Alli. Chung and Gomez were unworthy of belief insofar as their evidence
    or prior statements implicated the appellant. Trial counsel for the appellant
    did not advance a third party suspect defence but did suggest that the location
    of the blood stains inside the Bisram home tended to support the conclusion
    that the deceased was killed there and not outside. There was no evidence that
    the appellant was ever inside the Bisram home.

THE GROUNDS OF APPEAL

[34]

The
    appellant advances several complaints about the manner in which the Crown and
    trial judge conducted the proceedings. The seven grounds of appeal can be reduced
    to three broad categories:


i.

the manner in which the trial Crown cross-examined her own witnesses
    under s. 9(2) of the
Canada Evidence Act
, R.S.C. 1985, c. C-5 (
CEA
)
    and in what she said in her closing address to the jury;


ii.

the admissibility and jury use of evidence admitted as an exception to
    the hearsay rule; and


iii.

the correctness and adequacy of the trial judges charge to the jury on
    circumstantial evidence and, more specifically, on evidence of post-offence
    conduct.

Ground #1: The Cross-examination under s. 9(2)

[35]

The
    first ground of appeal relates to the trial Crowns cross-examination of Gomez
    and Chung after receiving leave under s. 9(2) of the
CEA
. Later, the
    Crown sought to have both witnesses declared adverse. The trial judge dismissed
    both applications. Subsequently, the trial judge permitted the Crown to
    introduce the pre-trial recorded statements of both Gomez and Chung as an
    exception to the hearsay rule. That ruling and the manner in which evidence of
    the statements was left to the jury are also grounds of appeal.

The Ruling
    of the Trial Judge

[36]

Trial
    counsel acknowledged that there were inconsistencies between the witnesses
    out-of-court statements and their in-court testimony. The principal
    inconsistency had to do with an alleged admission by the appellant of having
    stabbed another person. Counsel contended that several factors relating to the
    circumstances in which the out-of-court statements were made rendered them
    unreliable and thus the trial judge should exercise his discretion to refuse
    leave to cross-examine under s. 9(2).

[37]

The
    trial judge disagreed with this position and granted leave to the Crown to
    cross-examine both Gomez and Chung as to the statement. He concluded that neither
    the manner in which the interviews were conducted nor the condition of the
    witnesses compromised the voluntary character of their responses or the
    reliability of their prior statements.

The Cross-examinations

[38]

The
    principal inconsistencies between the out-of-court statements of Gomez and
    Chung and their testimony at trial related to admissions by the appellant about
    stabbing another person. Each resiled from his pre-trial statement. Gomez
    claimed it was Resaul, rather than the appellant, who told him that the
    appellant had said he had stabbed somebody. Chung testified that the appellant
    was in the car when Resaul threw the knife into the pond, but that the
    appellant did not participate in the discussion because he was drifting in and
    out of consciousness. Neither adopted their out-of-court statement as true at
    trial.

[39]

The
    trial Crowns s. 9(2) cross-examination of each witness extended beyond the
    inconsistencies between the out-of-court statements and the trial testimony. In
    large measure, Crown counsel confirmed the truthfulness of the other statement
    details that coincided with each witnesss testimony at trial.

[40]

Trial
    counsel did not object to Crown counsels cross-examination of either witness
    after the s. 9(2) rulings.

The Arguments on Appeal

[41]

The
    appellant says the trial Crowns cross-examination of Gomez and Chung far
    exceeded what s. 9(2) permits in that it constituted a cross-examination on the
    statement as a whole. In effect, the Crown adduced evidence of a prior
    consistent statement and confirmed its truth, later inviting the jury to make
    improper use of it.

[42]

The
    respondent disagrees. Under s. 9(2), the Crown was entitled to ask
why
each witness departed from what he had said in his statement and, in
    particular, whether the discrepancy was a result of collusion with the
    appellant to fabricate evidence. Further, the complaint about the
    cross-examination is irrelevant since the statements were admitted as evidence
    of the truth of their contents.

The Governing Principles

[43]

Section
    9(2) authorizes a limited exception to the general rule about the manner in
    which a party may elicit evidence from a witness the party has called.

[44]

To
    invoke s. 9(2), the party calling the witness must make an allegation that the
    witness made a statement, at another time and in a particular form,
    inconsistent with his or her testimony in the proceeding. The remedy under s.
    9(2) is discretionary:
R. v. Rouse
, [1979] 1 S.C.R. 588, at p. 604. These
    prerequisites permit, but do not require, the presiding judge to grant leave to
    the party who has called the witness to cross-examine him or her as to the
    statement.

[45]

Some
    additional features about the operation of s. 9(2) warrant brief mention.

[46]

First,
    as we have already seen, the remedy is discretionary. Thus, absent an error in
    principle, a failure to consider a relevant factor, consideration of an
    irrelevant factor, or a decision that is plainly unreasonable, the trial judges
    decision is entitled to deference.

[47]

Second,
    despite the absence of a defined standard in s. 9(2), this court has previously
    decided that the judge should determine whether to grant leave to cross-examine
    by asking whether the ends of justice are best attained by permitting it:
R.
    v. Carpenter
(No. 2) (1982), 1 C.C.C. (3d) 149 (Ont. C.A.), at p. 155.

[48]

Third,
    the scope of cross-examination under s. 9(2) is confined by the words: as to
    the statement. This language excludes cross-examination at large:
R. v.
    Cooper
, [1970] 3 C.C.C. 136 (Ont. C.A.), at p. 136. The scope of
    cross-examination under s. 9(2) is also informed by the statutory language
    without proof that the witness is adverse. It would be incongruous to find
    that s. 9(2) (which restricts cross-examination to as to the
statement

    (emphasis added)) permitted cross-examination at large and thus provided the
    same remedy as under s. 9(1), where a declaration of adversity is required.

[49]

Fourth,
    examining counsel is entitled to know whether the witnesss departure in their
    trial testimony from a previous out-of-court statement was to protect the accused:
R. v. Dayes
, 2013 ONCA 614, 301 C.C.C. (3d) 337, at para. 31. Thus, questions
    that attempt to unearth why the witness has changed his evidence at trial from
    what he had said in a previous, more contemporaneous out-of-court statement are
    allowed under s. 9(2). In addition, s. 9(2) applications are often used to set
    the groundwork for a declaration that the witness is adverse. The factors
    relevant to such a declaration include bias and collusion:
Dayes
, at
    para. 30.

[50]

Further,
    the prior statement is not admissible as proof of the truth of its contents. Rather,
    it is available as a factor for consideration in assessing the weight to be
    assigned to its authors trial testimony. The prior statement, even if adopted
    at trial, has no intrinsic evidentiary value and should not be made an exhibit
    available to the jury during their deliberations:
R. v. Rowbotham
(1988), 41 C.C.C. (3d) 1 (Ont. C.A.), at pp. 53-54; and
R. v. McShannock
(1980), 55 C.C.C. (2d) 53 (Ont. C.A.), at p. 56.

[51]

A
    final point. Reliability is not an essential component of a prior statement
    under s. 9(2), at least not in the same sense reliability is used in connection
    with prior statements admissible as substantive evidence under the principled
    exception to the hearsay rule:
R. v. Tran
, 2010 ONCA 471, 257 C.C.C.
    (3d) 18, at para. 38.

The Principles Applied

[52]

I
    would not give effect to this ground of appeal.

[53]

First,
    the trial judges decision to grant leave under s. 9(2) was discretionary and
    entitled to deference:
Rouse
, at p. 604. The inconsistencies were
    acknowledged and patent. Each statement was recorded in a manner described in s.
    9(2) and of uncontested accuracy.

[54]

Second,
    the manner of questioning here, while not the most direct route, was available
    to the trial Crown. Crown counsel was permitted to ask questions to determine
    why the witnesses departed from their earlier statements, in particular whether
    this was to protect the appellant:
Dayes
, at para. 31. Thus, Crown
    counsel was allowed to ask questions which would attempt to show that the only
    portions of the statements recanted by the witnesses were those in which the
    appellant admitted complicity. Further, it was clear that the Crown was
    attempting to lay a foundation for an application to declare the witness adverse,
    a recognized purpose of cross-examination under s. 9(2):
Dayes
, at
    para. 30.

[55]

Third,
    trial counsel for the appellant did not object to the manner in which the
    cross-examination proceeded after leave had been given under s. 9(2). While failing
    to object is not dispositive, it affords some evidence that counsel did not
    think it improper or prejudicial.

[56]

Finally,
    the appellants complaint lacks cogency when the prior statements were admitted
    as proof of their contents under the principled exception to the hearsay rule. This
    is the subject of the next ground of appeal.

Ground #2: The Admissibility of the Out-of-court Statements of
    Gomez and Chung

[57]

The
    appellant also alleges error in the trial judges decision to admit the
    out-of-court statements of Gomez and Chung as substantive evidence and in what
    the judge said or failed to say in instructing the jury about their use of the
    evidence in deciding the case. I begin with a consideration of the claim that
    the evidence was wrongly admitted.

The Rulings of the Trial Judge

[58]

At
    trial, counsel for the appellant conceded that the necessity requirement had
    been met for each witness. The controversial ground was whether the Crown had
    established threshold reliability and, if so, whether each statement should be
    excluded because its prejudicial effect exceeded its probative value.

[59]

The
    trial judge reviewed the circumstance of Gomezs arrest and of the statement he
    made after that arrest. The interview took place at a police station after
    Gomez had been arrested on a charge of second degree murder, advised of his
Charter
rights and had spoken to duty counsel. Gomez demonstrated an awareness of his
    rights to counsel and silence. As the interview began, he was told and
    confirmed his knowledge of the importance of telling the truth and the
    consequences of lying. The events of which he was asked were hours old, his
    memory of them fresh. The interview was videotaped in its entirety and, most
    significantly, Gomez was available for cross-examination before the jury.
    Despite the absence of an oath, or a declaration to tell the truth, threshold
    reliability had been established.

[60]

Chungs
    police interview was audio and video recorded. Chung was under oath and warned
    about the consequences of lying to investigators. Chung was not charged with an
    offence. He was voluntarily at the station with his father. The relevant events
    and the interview were closely connected. The interview and its surrounding
    circumstances, including anything said to Chung, were entirely free from
    oppression. Chung was available for cross-examination at trial. He later showed
    the police where the knife had been discarded.

[61]

The
    trial judge was also satisfied that the probative value of each statement exceeded
    its prejudicial effect. The jury was well able to evaluate the reliability of
    the evidence with the tools it had at its disposal.

The
    Arguments on Appeal

[62]

The
    appellant says that neither out-of-court statement satisfied the more stringent
    standard of threshold reliability required for prior inconsistent statements by
    recanting witnesses. In the alternative, the statements, if otherwise
    admissible, should have been excluded because their minimal probative value was
    overborne by their profound prejudicial impact.

[63]

The
    appellant contends that Gomezs statement, made to a person in authority, was
    induced by a hope of advantage held out by the interviewer. The trial judge
    found that the statement was not obtained by oppression but never considered
    the promise of leniency as an inducement. The appellant lists a number of
    factors supporting a finding of inducement. Gomez was under arrest for murder. He
    was denied access to counsel for seven hours. For nearly the entire interview,
    he said nothing about any incriminating admission by the appellant. He was
    vulnerable and readily acceded to a suggestion of self-exoneration by putting
    the blame on the appellant.

[64]

The
    appellant also submits additional reasons for why the statements were
    unreliable. Gomez was a co-accused, making his statement inherently unreliable.
    The statement was not under oath. Further, the telephone call in which Gomez
    claimed the appellant admitted complicity could not have occurred. The trial
    judge also misapprehended or failed to consider that Chung had a motive to lie.

[65]

The
    respondent points out that the only live controversy at trial was whether Crown
    counsel had established the threshold reliability of each statement. The trial
    judges conclusions, which considered the governing principles and were free of
    error, are entitled to deference. The same deference is warranted in his
    balancing of probative value and prejudicial effect.

[66]

The
    respondent submits that the absence of an oath did not preclude the admission
    of Gomezs statement, which displayed sufficient circumstantial guarantees of
    trustworthiness and provided adequate substitutes for testing its truth and
    accuracy. The trial judge rejected the argument that Gomez was inherently
    untrustworthy because of his repeated falsehoods in the statement. He also
    rejected the circumstances in which the statement was made as affecting the
    voluntariness and threshold reliability of the statement. He rejected the same
    factors, now advanced as inducements, when they were argued as demonstrating oppression
    at trial. Additionally, Gomez was aware of his right to silence and of the
    importance of telling the truth to those investigating the murder. He had
    spoken to duty counsel and received legal advice. He was available for
    cross-examination.

[67]

The
    respondent reminds us that Chung was not charged with murder, or any other
    offence, and thus not a person whose statement was inherently unreliable. At
    best, as a potential accessory after the fact, his interest was in exculpating
    not implicating the appellant as a principal. No
per se
rule of
    exclusion arises in the case of accessories after the fact, unlike with
particeps
    criminis
. Further, Chung was under oath and warned about the consequences
    of lying under oath. His statement was videotaped in its entirety. He was
    available for cross-examination. The appellants complaints about
    untrustworthiness are about things that are relevant to ultimate not threshold
    reliability, thus not capable of exclusionary influence.

The Governing Principles

[68]

The
    out-of-court statements of Gomez and Chung were relevant and material. However,
    they engaged the hearsay rule. Crown counsel, who sought to proffer the
    statements, had to establish on a balance of probabilities that the evidence of
    the statements was necessary and reliable, and further that their probative
    value outweighed their prejudicial effect.

[69]

The
    authorities regard recantation as satisfaction of the necessity requirement:
R.
    v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 78; and
R. v.
    Youvarajah
, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 22.

[70]

The
    reliability requirement refers to threshold reliability, not ultimate
    reliability, and thus reflects the distinction between the admission of
    evidence and reliance upon it:
Khelawon
, at para. 2; and
Youvarajah
,
    at paras. 23-24. It is for the trial judge to determine whether the proponent
    of the evidence has established threshold reliability. Where the evidence is
    admitted, it is for the jury to determine how much or little they will believe
    of it and rely upon it in reaching their conclusion about the adequacy of the
    case for the Crown.

[71]

A
    prior inconsistent statement of a non-accused witness may be admitted as
    substantive evidence if the proponent satisfies the reliability requirements
    established in
R. v. B. (K.G.)
, [1993] 1 S.C.R. 740. The reliability
    requirement insists:


i.

that the statement be under oath or its equivalent after a warning about
    the consequences of an untruthful statement;


ii.

that the statement be videotaped in its entirety; and


iii.

that the opposite party has a full opportunity to cross-examine the
    declarant.

See
B. (K.G.)
, at pp. 795-796;
Youvarajah
,
    at para. 29; and
R. v. Chretien
, 2014 ONCA 403, 309 C.C.C. (3d) 418,
    at para. 51.

[72]

The
    prerequisites imposed in
B. (K.G.)
are not preclusive. A party may
    establish threshold reliability by two methods, which are not mutually
    exclusive:


i.

the presence of adequate substitutes for testing truth and accuracy
    (procedural reliability); or


ii.

sufficient circumstantial guarantees of reliability or an inherent
    trustworthiness (substantive reliability).

See
Khelawon
, at paras. 49 and 61-63;
Youvarajah
,
    at para. 30;
Chretien
, at para. 52; and
R. v. Devine
, 2008
    SCC 36, [2008] 2 S.C.R. 283, at para. 22.

[73]

Under
    the
B. (K.G.)
regimen, an oath is not an absolute requirement for a
    finding of reliability:
B. (K.G.)
, at p. 792. Other circumstances may
    be sufficient to impress upon the declarant/witness the importance of telling
    the truth:
B. (K.G.)
, at pp. 792 and 796. Evidence from which it can reasonably
    be inferred that, when the statement was made, the declarant appreciated the
    solemnity of the occasion and the importance of telling the truth may serve as
    a proxy for an oath:
R. v. Trieu
(2005), 195 C.C.C. (3d) 373 (Ont.
    C.A.), at para. 85; and
R. v. Adjei
, 2013 ONCA 512, 309 O.A.C. 328,
    leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 74, at para. 39. In
    addition, external evidence, which is at once itself reliable and tends to
    confirm, in a meaningful way, the reliability of the out-of-court statements,
    may compensate for the absence of an oath:
Trieu
, at para. 85; and
Adjei
,
    at para. 39.

[74]

The
    most important factor in the procedural reliability analysis is the
    availability of the declarant as a witness in the proceedings so that the opposite
    party has a full opportunity to cross-examine him or her before the trier of
    fact:
Youvarajah
, at para. 35;
Chretien
, at para. 53; and
R.
    v. Couture
, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 92 and 95. The
    opportunity to cross-examine the declarant/witness before the trier of fact
    must be a meaningful one, however, not limited, for example, because the
    witness urges privilege, refuses to answer the cross-examiners questions or
    claims lack of memory:
Chretien
, at para. 53.

[75]

Satisfaction
    of the necessity and reliability requirements does not guarantee admission of a
    prior statement as substantive evidence. The trial judge retains the discretion
    to exclude a statement because its prejudicial effect outweighs its probative
    value:
Chretien
, at para. 45.  The factual findings that underpin this
    analysis and the result of the balancing process attract deference from
    reviewing courts:
Chretien
, at para. 45.

The Principles Applied

[76]

As
    I will explain, I would not accede to this ground of appeal.

[77]

First,
    deference is due to both decisions the trial judge made, which involved fact-sensitive
    inquiries that required consideration and analysis of all the relevant
    circumstances:
Youvarajah
, at para. 31;
Couture
, at para. 81;
    and
Chretien
, at para. 57.

[78]

Second,
    necessity was not in issue here. Trial counsel for the appellant correctly
    conceded that the necessity requirement had been met by the witnesses
    recantation of the part of their statements in which the appellant admitted
    liability:
Youvarajah
, at para. 22; and
Khelawon
, at para.
    78. What remained was whether the Crown had established reliability, and, if
    so, whether the probative value of the statements as substantive evidence
    predominated over their prejudicial effect. As mentioned before, threshold
    reliability can be established by showing procedural reliability or substantive
    reliability. In this case, as the trial judge found, there were elements of
    both at work.

[79]

Chungs
    statement was under oath, accompanied by a warning about the consequences of
    telling lies and recorded in its entirety. Chung was not charged with any
    offence and attended the police station voluntarily with his father. An
    essential feature of his statement  the disposal of a knife at the appellants
    direction  was confirmed by the finding of a knife in the pond described by
    Chung near the home of the appellants parents.

[80]

Gomezs
    statement was not made under oath. It was videotaped in its entirety and
    preceded by the primary and secondary police cautions and
Charter
advice. Gomez spoke to duty counsel. He was charged with murder and advised of
    the consequences of lying to the police and the importance of telling the
    truth. It is a reasonable inference that Gomez appreciated the solemnity of the
    occasion and the importance of speaking the truth:
Trieu
, at para. 85;
    and
Adjei
, at para. 39.

[81]

The
    most important factor in the reliability analysis, a factor that on its own
    goes a long way to establishing procedural reliability in the absence of an
    oath, is that both declarants were witnesses at trial and subject to full
    cross-examination on their statements and their evidence as a whole:
Youvarajah
,
    at para. 35;
Couture
, at paras. 92 and 95; and
Chretien
, at
    para. 53. Here there were no impediments to full cross-examination. No
    assertion of privilege. Or claim of memory lapse. And each declarant was more
    aligned in support of the appellant than at odds with him.

[82]

Finally,
    the appellant has not established any basis upon which to interfere with the
    trial judges discretionary determination that the probative value of this
    evidence exceeds its prejudicial effect.

Ground #3: Jury Instructions on
    the Hearsay Statements

[83]

The
    appellant questions the adequacy of the trial judges instructions to the jury about
    the manner in which they should assess the evidence provided by the
    out-of-court statements.

The Trial Judges Instructions

[84]

The
    trial judge vetted his final instructions, which were delivered orally and
    provided in writing to the jury, with counsel. Three separate parts of the
    charge relate to the out-of-court statements admitted as substantive evidence.

[85]

In
    a section entitled Out-of-court Utterances and Statements of Accused, which
    made express reference to Gomez and Chung, the trial judge explained that the
    jurors first task was to decide whether the appellant actually made the
    statement a witness attributed to him. After describing several circumstances
    the jurors could consider in making this threshold decision, the trial judge
    expressly instructed the jury: Unless you decide that Mr. Taylor made a
    particular remark or statement, you must
not
consider it in deciding
    this case (emphasis in original).

[86]

The
    next section dealt with the use of prior inconsistent statements of non-accused
    witnesses for impeachment purposes only. The third section, entitled Prior Inconsistent
    Statement of Non-accused Witness as Substantive Evidence, applied only to
    Chung and Gomez. Here, the trial judge explained to the jury the factors they
    should consider in evaluating the out-of-court statement as substantive
    evidence.

[87]

Finally,
    in his review of the position of the defence, the trial judge pointed out the
    reasons advanced by trial counsel why the jurors should not accept as truthful
    the incriminating parts of the out-of-court statements.

The Arguments on Appeal

[88]

The
    appellant acknowledges that the trial judge properly instructed the jury on the
    general principles that apply in an assessment of the weight to be assigned to
    an out-of-court statement received as substantive evidence and its relationship
    to the in-trial testimony of the same witness. But the trial judge failed,
    according to the appellant, to draw to the jurys attention the specific
    frailties in the out-of-court statements that eroded their probative value.

[89]

The
    appellant says the trial judge should have expressly instructed the jury to
    disregard the appellants admissions if they were not satisfied that he made
    them. The judge should have pointed out as well that each had a motive to lie 
    self-protection  especially Gomez who was himself charged with murder. Gomezs
    statement was not under oath or affirmation and he misled the police in order
    to protect his friend, Resaul. Chung could not recall whether the person who
    told him about the appellants admission was the appellant himself or Resaul.

[90]

The
    respondent takes the position that the jury received adequate instructions
    about how to assess the evidence of the out-of-court statements of Gomez and
    Chung, as well as their in-court testimony. The deficiencies of which the
    appellant complains are not legal principles upon which express instructions were
    required to equip the jury to handle this evidence. These were points of
    argument made by trial counsel and did not need to be included in the judicial
    instructions.

[91]

The
    respondent points out that the trial judge expressly instructed the jury that
    their first task was to decide whether they were satisfied that the appellant
    made the incriminating admissions described in the statements. Without that
    finding, the instructions continued, they were not to consider the admissions.
    This made it clear, at least by necessary implication, that if someone else
    made the comment  say Resaul  the evidence could not be considered.

The
    Governing Principles

[92]

The
    complaint here is that the trial judge failed to include in his final
    instructions a catalogue of factors or circumstances the appellant wanted the
    jury to consider in the assessment of the weight they would assign to the
    incriminating aspects of the out-of-court statements admitted as substantive
    evidence. Each factor or circumstance was apparent at trial, either in the
    statement itself or in the testimony given at cross-examination. In other
    words, these were obvious factors or circumstances which did not require
    judicial instructions to become apparent.

[93]

Several
    basic principles inform an assessment of the validity of this complaint.

[94]

First,
    we adopt a functional approach in our assessment of the adequacy of jury
    instructions. We examine the instructions as a whole, in the context of the
    evidence adduced and the positions advanced at trial, and test them against
    their ability to fulfil their purpose of equipping the jury to perform its
    task:
R. v. Jacquard
, [1997] 1 S.C.R. 314, at para. 14;
R. v.
    Cooper
, [1993] 1 S.C.R. 146, at pp. 163-164; and
R. v. Cudjoe
,
    2009 ONCA 543, 68 C.R. (6th) 86, at para. 154.

[95]

Second,
    provided a jury instruction fulfils its purpose, it does not become inadequate
    because more could have been said, or what was said could have been more
    felicitously phrased, or located in another place in the instructions:
Cudjoe
,
    at para. 154.

[96]

Third,
    at least for complaints involving non-direction, some significance should be
    assigned to the nature of the alleged deficiency. Non-direction on matters of
    evidence stands on a different legal footing than non-direction on principles
    of law. Non-direction about a governing legal principle may well amount to
    misdirection. Not so with respect to an item of evidence or an inference
    available from an item of evidence. Failure to tell the jury everything which
    they might have been told is not misdirection. Misdirection occurs when the
    judge has told the jury something wrong or where what the judge has told them
    would make wrong what he or she has left them to understand:
Cudjoe
,
    at para. 154;
R. v. Demeter
(1975), 25 C.C.C. (2d) 417 (Ont. C.A.), affd
    on other grounds, [1978] 1 S.C.R. 538, at pp. 436-437.

[97]

Finally,
    we expect counsel to assist the trial judge by offering constructive
    submissions about the content of jury instructions, especially final
    instructions. Pre-charge conferences provide an appropriate venue for those
    discussions including the extent to which evidence may be reviewed and its
    strengths and weaknesses pointed out:
Cudjoe
, at para. 155;
Jacquard
,
    at para. 38;
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at para.
    58; and
R. v. Royz
, 2009 SCC 13, [2009] 1 S.C.R. 423, at para. 3. It
    is all the more so when final instructions are vetted with counsel in advance
    of delivery:
R. v. Polimac
, 2010 ONCA 346, 254 C.C.C. (3d) 359, leave
    to appeal to S.C.C. refused, [2010] S.C.C.A. No. 263, at paras. 89 and 96-97.

The Principles Applied

[98]

For
    several reasons, I would not give effect to this ground of appeal.

[99]

I
    begin with consideration of the nature of the complaint. This submission
    involves a claim of non-direction, a failure to instruct on a subject-matter.
    But the subject-matter is not a legal principle, for example, that explains the
    essential elements of the offence or a mode of participation or explains the
    limited use the jury may make of a particular item of evidence. The substance
    of the complaint has to do with the failure to recite certain factors or
    circumstances that may affect the weight the jury might assign to the
    out-of-court statements. No misdirection occurred here. Non-direction on
    matters of evidence does not amount to misdirection except where the relevant
    item of evidence mentioned is the foundation of the defence, which was not the
    case here:
Demeter
, at pp. 436-437.

[100]

Second, the jury
    received proper instructions on how they were to evaluate the out-of-court
    statements of Gomez and Chung. Included in those instructions was a specific
    reference to suggestions made and leading questions asked by the interviewing
    officer.

[101]

Third, the trial
    judge expressly instructed the jury that they were only entitled to consider
    the alleged admissions of complicity if they were satisfied that the appellant
    was the person who made them to Gomez and Chung. From this instruction, the
    jurors would understand that, if they were not satisfied that the appellant
    made the admissions to Chung and Gomez, they were not entitled to use them in
    assessing the adequacy of the Crowns proof. It would have been better had the
    trial judge expressly instructed the jury that, if they found it was Resaul who
    told either Chung or Gomez about the appellants admission, they were not
    entitled to consider that evidence in reaching their conclusion. But, in light
    of what was said, I am not persuaded that the omission was prejudicial to the
    appellant.

[102]

Fourth, the
    trial judge instructed the jury fully on the position of the defence, in
    particular, on the reasons why the defence said the jury should not rely on the
    statements of Gomez and Chung about the appellants admissions. The language
    used in this instruction was what trial counsel for the appellant had provided
    as a summary of his position.

[103]

Finally, the
    standard to be applied in assessing this claim of error is one of fairness, not
    perfection. The instructions, with modest effort, could have been better. But
    that is not the test. The instructions were fair. They attracted no objection
    from trial counsel in whose words they were composed.

Ground #4: The Chung and Gomez Statements as Exhibits

[104]

The final ground
    of appeal relating to the out-of-court statements of Chung and Gomez, which
    were filed as exhibits at trial, has two aspects:


i.

the trial judge erred in permitting the recordings and transcripts of
    the out-of-court statements to go to the jury; and


ii.

the trial judge erred in failing to send transcripts of relevant
    portions of the cross-examination of Gomez and Chung on their statements to the
    jury along with the exhibits or, at the very least, to remind the jurors in his
    final instructions about the same qualifications.

The Additional Background

[105]

Trial counsel
    for the appellant agreed explicitly that the recordings and transcripts of the
    out-of-court statements should be filed as exhibits and sent to the jury room
    for jury review during deliberations. He did not ask that transcripts or
    recordings of relevant parts of the cross-examination of Gomez and Chung on
    their statements be sent to the jury room. Nor did trial counsel seek
    additional or more specific instructions about jury use of the statements.

[106]

The trial judge
    provided mid-trial and final instructions about recordings and transcripts as
    evidence, the impeachment value of prior statements, and the assessment of
    prior statements as substantive evidence. He also reiterated the defence
    position that the parts of each statement that reported the appellants
    admissions were untruthful. The instructions repeatedly reminded the jurors to
    consider and decide the case on the evidence as a whole.

The Arguments on Appeal

[107]

In a reversal of
    the position advanced by trial counsel, the appellant now complains about
    permitting the recordings and transcripts to accompany the jury for use during
    deliberations. The appellant argues this had the effect of sending the most
    incriminating parts of the statement to the jury without their in-court
    recantation or any cross-examination on the issue. This imbalance caused an
    unfair trial.

[108]

The respondent
    says the decision to permit the exhibits to go to the jury room involves the
    exercise of judicial discretion. Absent an error in principle, the decision,
    supported by trial counsel, should be accorded substantial deference. Further,
    trial counsel did not seek a more specific instruction about jury use of the
    recordings or transcripts, or suggest, as here, that other material should
    accompany the exhibits. The trial judges instructions, which attracted no
    objection from trial counsel, ensured that the jury only used the inculpatory
    admissions if they were satisfied the appellant had made them. The instructions
    also reminded the jury of the defence position in connection with the
    inculpatory admissions. The procedure followed did not compromise trial
    fairness.

The
    Governing Principles

[109]

As a general
    rule, things filed as exhibits go to the jury room during deliberations, even
    though the jurors see and hear them during the trial. These things are real
    evidence. Written confessions. Photographs. Exculpatory statements. Video
    surveillance showing the commission of an offence. Real evidence includes any
    evidence that conveys a relevant first-hand sense impression to the trier of
    fact.

[110]

Witnesses give
    evidence about various aspects of things filed as exhibits at trial. Their evidence
    is subject to cross-examination, which may qualify or diminish the weight to be
    assigned to the exhibit, the real evidence. Yet it is rare that the
    cross-examination would also accompany the real evidence to the jury room. In
    other words, no bright line rule requires the qualifying testimony to accompany
    the real evidence to the jury room. How qualifications on the real evidence are
    handled is left to the good sense and sound discretion of the trial judge.

[111]

This point is
    well-illustrated by prosecutions for sexual offences where an essential
    component in the prosecutions case is often a videotaped statement tendered
    and received under s. 715.1 of the
Criminal Code
, R.S.C. 1985, c. C-46.
    The videotape, as well as a transcript of it, but not of the cross-examination
    at trial, are routinely filed as exhibits. The complainant or witness is
    cross-examined at trial. Frequently, the cross-examination focuses on the
    videotaped complaint adopted by the witness at trial.

[112]

In such cases, a
    trial judge has the discretion to permit the jury to view the videotaped
    statement in the jury room:
R. v. T. (W.P.)
(1993), 14 O.R. (3d) 225
    (C.A.), at p. 268. The trial judge also has the discretion to further instruct
    the jury about the videotape, as for example, to caution the jurors against
    giving the statement undue weight simply because it was in the form of a
    videotape:
T. (W.P.)
, at p. 268. It is for the trial judge to decide
    how best to facilitate the jurys deliberations while maintaining the fairness
    of the process:
R. v. Noftall
(2004), 181 C.C.C. (3d) 470 (Ont. C.A.),
    leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 297, at para. 15; and
T.
    (W.P.)
, at p. 268.

[113]

The exercise of
    the trial judges discretion to permit the jury to review a videotape in their
    jury room during deliberations is reviewable on appeal:
Noftall
, at
    para. 18. But an appellate court should only interfere with the exercise of
    that discretion where an appellant can demonstrate that his or her right to a
    fair trial was compromised by allowing the jury to take the videotape with them
    during deliberations:
R. v. Archer
(2005), 202 C.C.C. (3d) 60 (Ont.
    C.A.), at para. 78.

The Principles Applied

[114]

As I will
    explain, I would reject this ground of appeal.

[115]

First, as a
    general rule, things filed as exhibits at trial go to the jury room. Exhibits
    are evidence with a permanence that outlives oral testimony. As mentioned, at the
    very least, a trial judge has the discretion to permit videotaped statements
    filed as exhibits to go to the jury room:
T. (W.P.)
, at p. 268. This
    is so even if the videotape represents the evidence in-chief of the witness and
    is subject to qualification in cross-examination:
T. (W.P.)
, at p.
    268.

[116]

Second, the
    trial judges exercise of discretion is entitled to deference unless the
    appellant demonstrates that his right to a fair trial was compromised by
    allowing the jury to take the recordings with them to the jury room:
Archer
,
    at para. 78. Any impact on trial fairness turns on the instructions to the jury
    about the recordings:
Archer
, at para. 79.

[117]

The principal
    attack on the recordings here was that their recital of inculpatory admissions
    by the appellant was untruthful and their recantation of them at trial was
    truthful. The trial judge instructed the jury fully on the position of the
    defence, not only the denial of liability but also the reasons why the jury
    should reject as untruthful the alleged admissions contained in the statements
    of Gomez and Chung. Considered in this light, the failure to more fully review
    the cross-examination or say more about the statements does not amount to
    misdirection or compromise the fairness of the trial.

[118]

Third, too much
    should not be made about the risk of juror overemphasis on parts of the
    evidence, in this case the recordings, because of the form in which the
    evidence is adduced. Exhibits are part of the evidence that jurors are entitled
    to consider, just like testimony and admissions (which are often reduced to
    writing and filed as exhibits). Jurors are told to consider
all
the
    evidence. It is for them to say what is important and deserving of emphasis.
    Taken to its logical conclusion, the appellants argument would exclude any
    exhibits, including those that may be exculpatory, from going to the jury room.
    This does not sit well with the confidence we justifiably repose in jurors:
R.
    v. Corbett
, [1988] 1 S.C.R. 670, at pp. 692-693.

[119]

A final point. It
    passes strange how the appellant can now advance an argument that the
    statements should not have gone to the jury room when trial counsel expressly
    agreed that the statements should go:
Archer
, at para. 79. After all,
    the statements were evidence both for and against the appellant. Trial counsel
    did not object to the instructions or suggest that what was said was inadequate
    to ensure a fair trial for the appellant. While want of objection is not fatal,
    it tells heavily against the claim later advanced, for the first time, that the
    instructions resulted in unfairness.

Ground #5: The Crowns Jury
    Address

[120]

The appellant
    alleges several improprieties in Crown counsels closing address at trial. In
    general, the appellants complaints relate to:


i.

misstatements of evidence adduced at trial;


ii.

invitations to the jury to engage in prohibited reasoning; and


iii.

unfair allegations of collusion among the prosecution witnesses to
    protect the appellant from a finding of guilt.

[121]

The legitimacy
    of the complaints may be determined without reference to the specific passages
    of the closing address to which exception is taken.

The Arguments on Appeal

[122]

The appellant
    contends that Crown counsel improperly accused two Crown witnesses, Clarke and
    Rajroop, of lying to protect the appellant. The Crown never made any such
    suggestion to the witnesses when they gave evidence and this offended the rule
    in
Browne v. Dunn
(1893), 6 R. 67 (H.L.). Further, there was no
    evidentiary basis to ground any submission that they planned to lie.

[123]

The appellant also
    submits the Crown misstated or mischaracterized:


i.

the evidence about Resauls whereabouts;


ii.

the alleged admissions by the appellant to Gomez and Chung; and


iii.

the evidence of Gomezs recantation and Palacioss testimony.

Further, Crown counsels address on the evidence of
    post-offence conduct was misleading in that it misrepresented the evidence
    about the hidden seat covers from the appellants car and invited the jury to
    engage in circular reasoning.

[124]

The respondent
    denies any suggestion of impropriety in the trial Crowns closing address. She
    submits that the absence of any complaint by trial counsel when presented with multiple
    opportunities to do so during and after delivery of the address is proof that
    what Crown said did not exceed the boundaries.

[125]

The respondent
    says the Crown made closing submissions that invited jurors to draw reasonable
    inferences from the evidence adduced at trial. The Crown did not call Clarke
    and Rajroop to attack their credibility and suggest collusive activity. Each
    had relevant evidence to give as members of the group who drove to the scene of
    the party to rescue Palacios, yet, surprisingly in light of their purpose,
    neither saw what the appellant did or where he went after they arrived.

[126]

The respondent also
    adds that the Crown, who addressed the jury first, was entitled to offer an
    anticipatory response to the defences claim that these same witnesses gave
    evidence in the service of exculpating Resaul with whom they were more clearly
    affiliated than with the appellant. Further, nothing the Crown said about the
    evidence of post-offence conduct mischaracterized the evidence or misled the
    jury about the use the jurors could make of it.

The Governing Principles

[127]

In conducting a
    prosecution and in addressing a jury, counsel for the Crown is to be accurate,
    fair and dispassionate:
R. v. Pisani
, [1971] S.C.R. 738, at p. 740.
    Over-enthusiasm for the strength of the case for the Crown, manifested in a
    closing address, may be forgivable where it relates to matters properly adduced
    in evidence. All the more so when the enthusiasm is modulated by a proper
    caution in the charge to the jury:
Pisani
, at p. 740. The situation is
    different, however, where the enthusiasm is coupled with or consists of putting
    before the jury, as facts to be considered in support of the case for the Crown,
    matters of which there is no evidence or that invite speculation rather than
    inference:
Pisani
, at p. 740.

[128]

No unyielding
    general rule mandates that an improper jury address by Crown counsel results in
    an unfair trial and that a conviction must be set aside on appeal:
Pisani
,
    at pp. 740-741. Each case falls to be decided on its peculiar facts. Factors to
    consider include:


i.

the seriousness of the improper comments;


ii.

the context in which the comments were made;


iii.

the presence or absence of objection by defence counsel; and


iv.

any remedial steps taken by the trial judge following the address or in
    final instructions to the jury.

These factors are illustrative, not exhaustive, of the
    circumstances that a trial judge may consider:
R. v. B. (R.B.)
, 2001
    BCCA 14, 152 C.C.C. (3d) 437, at para. 26.

The Principles Applied

[129]

For several
    reasons, I would reject this ground of appeal.

[130]

First, this is
    not a case in which the Crown called witnesses in its case-in-chief, not for
    the purpose of adducing evidence to prove facts material to the case for the
    Crown, but rather to discredit them and their evidence as a basis to allege
    collusion with the defence. See, for example,
R. v. Soobrian
(1994),
    96 C.C.C. (3d) 208 (Ont. C.A.) and
R. v. Figliola
, 2011 ONCA 457, 272
    C.C.C. (3d) 518.

[131]

Rajroop and
    Clarke were not peripheral witnesses. They were members of the group that
    responded to Palacioss telephone call. As posse members, they had material
    evidence to give about the intentions of the group as they headed towards Upton
    Crescent and their activities on and after arrival, including the whereabouts
    of the appellant. The nature of their relationship with the appellant and
    whether it coloured their evidence about the appellants conduct after arrival
    was a subject upon which the Crown was entitled to make submissions to the
    jury.

[132]

Second, Crown
    counsels final address did not invite the jury to rely on anything that was
    not in evidence or on anything that was in evidence for an improper purpose.
    Unlike in
Pisani
, the closing address did not create evidence or
    invite the jury to make findings on evidence woven from the fabric of Crown
    counsels submissions.

[133]

Third, the final
    address of Crown counsel consisted principally of inviting jurors to draw
    inferences supportive of the Crowns case and to reject inferences advanced by the
    defence. In a circumstantial case, this is neither surprising nor improper.

[134]

Fourth, Crown
    counsels statements about the evidence of post-offence conduct of the removal
    of the seat covers and their deposit in the appellants parents home were not
    misleading. The location of the seat covers and golf club gave rise to a
    reasonable inference that they were hidden and that the appellant was connected
    with them since they were from his car and found in his bedroom. That no blood
    was found on them was pointed out to the jury by the trial judge. However, the
    absence of blood does not negate an inference that hiding the items was to
    ensure that any link to the stabbing that may be revealed by their examination
    was not found.

[135]

Finally, trial
    counsel for the appellant did not object to anything said or implied in Crown
    counsels closing address. While not fatal, this gives some indication that
    counsel did not consider the address as misleading, inviting speculation, or
    unfaithful to the evidence adduced at trial.

Ground #6: The Charge on Post-offence Conduct

[136]

This ground
    alleges error in the trial judges instruction on evidence of post-offence
    conduct. The passage to which exception is taken attracted no objection at
    trial.

The Charge to the Jury

[137]

In his instructions
    on post-offence conduct, the trial judge told the jury to approach the evidence
    in two steps. The first step required jurors to decide whether the appellant
    actually did or said what he was alleged to have said or done after the offence
    was committed. An affirmative finding was necessary before jurors could proceed
    to the second step.

[138]

The instruction
    to which exception is taken explains to the jurors the potential use of the
    evidence depending on their initial finding about whether the conduct occurred
    or words were spoken. The instruction is this:

If you do
not
or cannot find that Mr. Taylor did or
    said those things
because
he was conscious of having done what is
    alleged against him, you
must not
use this evidence in deciding or in
    helping you decide that Mr. Taylor committed the offence charged.

On the other hand, if you find that anything Mr. Taylor did or
    said afterwards was
because
he was conscious of having done what is
    alleged against him, you may consider that evidence, together with all the
    other evidence, in reaching your verdict. [Emphasis in original.]

The Arguments on Appeal

[139]

The appellant
    says the instruction given here repeats an error identified 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. It invited the jury to engage in tautological reasoning and
    to jump directly to the issue of guilt as a precondition of the use they would
    make of evidence of post-offence conduct:
Hall
, at paras. 142-143. The
    error was compounded by the trial judges failure to itemize for the jury other
    explanations for the conduct that emerged from the evidence adduced at trial. The
    appellant submits the errors require a new trial.

[140]

The respondent
    acknowledges the so called 
Hall
error, but points out that the
Hall
court did not consider the error to be fatal to the validity of the
    conviction. Besides, the respondent says, the other charge deficits present in
Hall
are absent here. In the end, the trial judges instructions made it clear that
    jurors should reserve their final judgment on their use of evidence of
    post-offence conduct until they had considered the balance of the evidence and
    rejected any explanation of the conduct other than the appellants involvement
    in the murder.

The
    Governing Principles

[141]

In
Hall
,
    this court decided that the language used there, and repeated here, reflects
    error because it invites the jury to jump directly to the issue of guilt as a
    pre-condition to the use of the evidence of post-offence conduct in determining
    whether guilt has been established. This, the court said, is conducting the
    deliberation process backwards:
Hall
, at para. 143. Despite the
    finding of error, the court also held that, on its own, such an error was not
    fatal:
Hall
, at para. 146.

[142]

The decision in
Hall
preceded that of the Supreme Court in
R. v. White
, 2011 SCC 13, [2011]
    1 S.C.R. 433 which characterizes evidence of post-offence conduct as
    circumstantial evidence to be left to the jury to consider, along with the rest
    of the evidence, in the determination of guilt. The point has been made
    elsewhere that the need for a preliminary finding of fact as a condition
    precedent to jury use of an item of evidence is not unique to evidence of
    post-offence conduct. Nor does it turn the decision-making process on its head.
    The principle of reasonable doubt and the incidence of the burden of proof
    remain in play.

The Principles Applied

[143]

I would not give
    effect to this ground of appeal. As I said before, a
Hall
error, on
    its own, is not fatal. In this case, there are a number of considerations that short
    circuit the appellants claim for a new trial on the basis of such an error.

[144]

First, the
    instructions thoroughly canvassed the defence position in connection with this
    evidence in the language of trial counsels choosing. That position included a
    denial of participation in any discussion about the disposal of the knife and
    of any connection with the removal and hiding of the seat covers and golf club
    on which no evidence of blood was detected.

[145]

Second, trial
    counsel did not object to any aspect of the final instructions on evidence of
    post-offence conduct. The failure to object is not fatal to appellate success,
    especially since neither counsel nor the trial judge had the benefit of the
    reasons in
Hall
or
White
to assist them in the composition of
    the final instructions. The lack of objection does suggest, however, that the
    error, if it remains an error after
White
, was neither serious nor
    significant in the mind of counsel who sat through the trial and was better
    situated than this court to assess its impact:
R. v. Jaw
, 2009 SCC 42,
    [2009] 3 S.C.R. 26, at para. 44.

[146]

Finally, despite
    the circumstantial nature of the evidence adduced by the Crown at trial, the
    evidence of post-offence conduct did not occupy a prominent place in proving guilt.
    Centre stage was occupied by opportunity, motive, possession of the instruments
    of crime and the admissions contained in the prior statements of Gomez and
    Chung received as substantive evidence.

Ground #7: The Instructions on
    Circumstantial Evidence

[147]

The final ground
    of appeal alleges inadequacy in the trial judges final instructions on the
    standard of proof to be met to establish guilt exclusively on the basis of
    circumstantial evidence.

The Charge to the Jury

[148]

In the charge to
    the jury, the trial judge distinguished between direct and circumstantial
    evidence in the same language he had used in preliminary instructions to the
    jury in advance of Crown counsels opening and the introduction of evidence. He
    illustrated the inference-drawing process inherent in circumstantial evidence
    by an uncontroversial example unrelated to the evidence adduced at trial. The
    trial judges instructions on the standard of proof tracked the language
    suggested by Cory J. in
R. v. Lifchus
, [1997] 3 S.C.R. 320, at para.
    39. In connection with each essential element of the offence charged, he
    reminded the jury that proof beyond a reasonable doubt of each element was
    required before a finding of guilt could be made.

The Arguments on Appeal

[149]

The appellant
    argues that the trial judge erred in failing to instruct the jury that they
    were required to find the appellant not guilty unless they were satisfied that
    the appellants guilt was the sole rational inference that could be drawn from
    the evidence as a whole. The appellant sought such an instruction at trial but was
    denied it. As a result, the appellant says the jury received no guidance on the
    core element of the reasonable doubt standard.

[150]

The respondent
    says the appellant seeks a special instruction on the standard of proof
    required in cases in which the prosecutions proof consists of circumstantial
    evidence. That ship has sailed, the respondent contends, having left port in
    1977 and not returned since. The
Hodges
formula has been replaced by
    a flexible approach to explanation of the standard. In this case, the trial
    judge explained the difference between direct and circumstantial evidence and illustrated,
    by an uncontroversial example, the inference-drawing process. The trial judge
    repeatedly emphasized the need for the jurors to consider the evidence as a
    whole and to be satisfied beyond a reasonable doubt by the evidence on each
    essential element of the offence before reaching a guilty verdict. These
    instructions well equipped the jurors to perform their task.

The
    Governing Principles

[151]

Several basic
    principles inform consideration of this claim of non-direction amounting to
    misdirection.

[152]

First, the
    controlling authorities do not require a special instruction on the standard
    of proof required where the case for the Crown consists entirely of
    circumstantial evidence:
R. v. Cooper
, [1978] 1 S.C.R. 860, at pp.
    865-866 and 881; and
R. v. Griffin
, 2009 SCC 28, [2009] 2 S.C.R. 42,
    at para. 33. This is so even where the issue is one of identification:
Griffin
,
    at para. 33.

[153]

Second, the
    essential component of an instruction on circumstantial evidence is to instill
    in the jury that, in order to convict, they must be satisfied beyond a
    reasonable doubt that the only rational inference that can be drawn from the
    circumstantial evidence, considered as a whole, is that an accused is guilty of
    the offence:
Griffin
, at para. 33.

[154]

Third, the central
    message to the jury about the standard of proof in cases consisting exclusively
    of circumstantial evidence may be conveyed in different ways:
Griffin
,
    at para. 33. Trial judges are not required to adopt any specific language,
    provided the charge conveys to the jury in a clear way the central point, that
    is to say, the need to find the guilt of the accused established on the
    evidence as a whole beyond a reasonable doubt:
R. v. Tombran
(2000), 142
    C.C.C. (3d) 380 (Ont. C.A.), leave to appeal to S.C.C. refused, [2000] S.C.C.A.
    No. 294, at para. 29; and
R. v. Fleet
(1997), 120 C.C.C. (3d) 457
    (Ont. C.A.), at pp. 464-465.

[155]

Fourth, what is
    important in cases where the prosecution relies entirely on circumstantial
    evidence is that the jury understand how they can use that evidence to
    establish guilt beyond a reasonable doubt:
R. v. Mayuran
, 2012 SCC 31,
    [2012] 2 S.C.R. 162, at para. 38. The trial judge may satisfy this standard by
    explaining the nature of circumstantial evidence, the inferences that can
    properly be drawn from that evidence and the burden of proof beyond a
    reasonable doubt:
Mayuran
, at para. 38.

The Principles Applied

[156]

I would not give
    effect to this claim of error, which seeks to reclaim ground lost nearly four
    decades ago in
Cooper
and resurrect the
Hodges
formula as
    the single correct expression of the reasonable doubt standard in connection
    with cases that consist entirely of circumstantial evidence. That ship has sailed.
    And sunk.

[157]

As I have said
    earlier, the authoritative jurisprudence eschews a special instruction or
    prefabricated formula to explain the standard of proof required in cases
    entirely dependent on circumstantial evidence:
Mayuran
, at para. 38.
    It follows logically that the failure to do so in this case does not constitute
    misdirection or non-direction amounting to misdirection.

[158]

Second, in both
    the preliminary and final instructions, the trial judge described without error
    the nature of circumstantial evidence, explained and illustrated the
    inference-drawing process and repeatedly instructed the jury about the
    requirement that they be satisfied beyond a reasonable doubt of each essential
    element of the offence charged. These instructions fulfilled the trial judges
    obligations on this issue.

CONCLUSION

[159]

For these
    reasons, I would dismiss the appeal.

Released: June 19, 2015 (DW)

David
    Watt J.A.

I
    agree M. Tulloch J.A.

I
    agree M.L. Benotto J.A.


