



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Clause, 2016 ONCA 859

DATE: 20161117

DOCKET: C59063

Sharpe, Watt and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kelli Lynn Clause

Appellant

Joshua D. Frost, for the appellant

John A. Neander, for the respondent

Heard: June 10, 2016

On appeal from the conviction entered on April 6, 2013
    and the sentence imposed on January 9, 2014 by Justice Harrison S. Arrell of
    the Superior Court of Justice, sitting with a jury.

Brown J.A.:

I.

Overview

[1]

On January 10, 2010 the appellant, Kelli Lynn
    Clause, hosted a birthday party at a house on Second Line Road near Ohsweken,
    Ontario. During the party, the complainant, Ross Martin, was stabbed in the eye
    while sitting in a car and seriously injured. The only real issue at trial was
    whether it was the appellant who stabbed Mr. Martin in the eye.

[2]

The jury convicted the appellant of one count
    of aggravated assault. At the conclusion of the hearing of the appeal, this
    court allowed the appeal and directed a new trial, with reasons to follow.
    These are those reasons.

II.

A brief chronology of events

[3]

On January 9, 2010, after returning home from
    work, Mr. Martin passed the afternoon and evening drinking with a friend,
    Roni-Lee Styres. Mr. Martin, Ms. Styres, and Skylar Henry lived together at the
    time.

[4]

Late that evening, Mr. Martin chatted with
    the appellant on Facebook, and she invited him to her birthday party. The
    appellant picked Mr. Martin up from his house early in the morning of January
    10, and they proceeded to the party.

[5]

About half an hour after Mr. Martin and the
    appellant reached the Second Line Road house, a group of 15 to 20 people
    arrived. Mr. Martin testified he was sucker punched by one of the new arrivals
    and then attacked by others as he lay on the ground.

[6]

After the attack, Mr. Martin left the house
    and began to walk back to where he lived. The appellant and another female
    picked him up along the way and drove him to the house he shared with Ms.
    Styres and Mr. Henry. Mr. Martin said he wanted to fight and planned to return
    to the Second Line residence.

[7]

Upon reaching his house, Mr. Martin asked Ms.
    Styres to drive him back to the party. Mr. Martin, Ms. Styres, and Mr. Henry then
    returned to the Second Line Road house using Ms. Styress car.

[8]

Although there was conflicting evidence about
    precisely what happened next, the evidence showed Mr. Martin attacked the
    appellants younger brother with a baseball bat outside of the house. Mr. Martin,
    in turn, was attacked by a group of people who came out of the house. He was
    hit with a variety of objects, including beer bottles and a metal pipe.

[9]

Ms. Styres and Mr. Henry were able to
    extricate Mr. Martin from the group and place him on the backseat of the car.
    While Mr. Martin was seated in the car, someone reached into the vehicle with a
    beer bottle and stabbed him in his right eye. He suffered serious injuries.

[10]

Ms. Styres and Mr. Henry took Mr. Martin to
    his mothers residence. The police were called and Mr. Martin was taken to
    hospital. At the hospital, Mr. Martin told a police officer he did not know who
    had attacked him.

[11]

In their initial statements to the police, Ms.
    Styres and Mr. Henry identified three males as the persons who had attacked Mr.
    Martin at the Second Line residence before he was stabbed in the eye. All three
    men were charged and pled guilty to aggravated assault.

[12]

Mr. Martin first identified the appellant as
    one of his attackers in a January 26, 2010 statement he gave to the police. At
    trial, Mr. Martin, Ms. Styres, and Mr. Henry testified that it was the
    appellant who reached in and stabbed Mr. Martin in the face with a beer bottle.

[13]

The jury convicted the appellant of one count
    of aggravated assault.

III.

The issues on appeal

[14]

The appellant advances several grounds of
    appeal, which I will address in the following order:

1.

In
    his opening statement, Crown counsel improperly referred to three statements the
    appellant made to the police, the admissibility of which was contested. The
    appellant submits the trial judge erred in failing to declare a mistrial after
    the Crowns opening;

2.

Alternatively,
    the appellant submits the trial erred by failing to give the jury an immediate
    corrective instruction to ignore the Crowns improper reference to the three statements
    in his opening;

3.

The
    trial judge erred in admitting a statement the appellant made to a police
    officer at a gas station shortly after the incident;

4.

The
    trial judge failed to instruct the jury properly on the use they could make of
    the appellants gas station statement;

5.

The
    trial judges charge was inadequate because he failed to instruct the jury on
    how to assess the prior inconsistent statements of three key Crown witnesses 
    Messrs. Martin and Henry, and Ms. Styres; and

6.

The
    charge was inadequate because the trial judge failed to instruct the jury on
    possible collusion amongst Messrs. Martin and Henry and Ms. Styres in regards
    to their evidence identifying the appellant as the person who struck Mr. Martin
    in the face with a beer bottle.

[15]

I see no error in the trial judges decision
    not to declare a mistrial (Issue 1), his admission of the appellants gas
    station statement to the police (Issue 3), or in his charge to the jury about
    how to assess inconsistencies in the evidence of the three key Crown witnesses
    (Issue 5). However, I accept the appellants submission that the trial judge
    made three errors of law: (i) he failed to provide the jury with a timely
    corrective instruction regarding the Crowns improper opening (Issue 2); (ii) he
    failed to instruct the jury properly on the use they could make of the
    appellants gas station statement to the police (Issue 4); and (iii) he failed
    to instruct the jury on the possibility of collusion amongst the three key
    Crown eye-witnesses (Issue 6). Cumulatively, those three errors resulted in an
    unfair trial, requiring the appellants conviction to be set aside and a new
    trial ordered.

IV.

Issues 1 and 2: The Crowns opening address

A.

The issue stated

[16]

During the course of his opening address,
    Crown counsel referred to three statements the appellant had made to police
    officers. The appellant made the first two statements to Sergeant Timothy
    Bomberry shortly after the assault on Mr. Martin.

[17]

Crown counsel stated Sgt. Bomberry went to
    the residence of Mr. Martins mother and assisted the paramedics in preparing
    him for transport to the local hospital. Crown counsel then stated:

After leaving the residence in Hagersville, [Sgt. Bomberry] had
    to stop to fuel up his cruiser. Coincidentally, there he observed the accused,
    Kelli Lynn Clause, and Lisa Hill. They too were filling up gas in their
    vehicle. He spoke with Ms. Clause and asked her specifically if she had met up
    with Mr. Ross Martin that night. Ms. Clause deliberately lied to the officer in
    stating that she had not seen Mr. Martin, but that they were in fact, supposed
    to meet up at a bar called Jackhammers in Brantford, but that he didnt show
    up. He advised Ms. Clause of the reason of his inquiry and she again stated
    emphatically that she had not seen Mr. Martin that night (the Gas Station Statement).

[18]

Crown counsel told the jury that Sgt.
    Bomberry then interviewed Mr. Martins roommates. Based on information he
    learned, Sgt. Bomberry returned to the Second Line residence where he
    encountered the appellant:

[W]ho became belligerent with him, who became assaultive with
    him. He will testify that she was intoxicated. He then began another
    conversation with her. He stated, You lied to me about knowing what happened
    to Ross Martin. Her response to him was, I dont give a fuck, fuck him. She
    then tried to grab the sergeant and interfere with his investigation by yelling
    and screaming (the Second Statement).

[19]

Crown counsel also referred to the
    anticipated evidence of Detective Constable Gordon Hill, who arrested the
    appellant when she turned herself in at the police station. In describing those
    events, Crown counsel told the jury:

Later that day, Detective Hill spoke with her and informed her
    as to the reason for her arrest, in particular, information he had received
    from Ross Martin as to her involvement in the aggravated assault. She denied
    that she was responsible, claiming that she was inside the residence on Second
    Line Road during the assault on Mr. Martin (the Third Statement).

[20]

On the day following the Crowns opening, defence
    counsel moved for a mistrial on the basis that Crown counsel had referred
    improperly to the three statements  they were statements made by the appellant
    to persons in authority the admissibility of which had not been determined in a
voir dire
.
    The trial judge dismissed the motion, ruling:

Your motion is dismissed. The comments made by [Crown counsel]
    in his opening was clearly indicated to the jury that its not evidence. If
    those statements do not go in after we have a
voir dire
, the jury will
    be instructed even more fully that what [Crown counsel] said was totally
    irrelevant, not evidence and not to be considered by them. Whether these three
    statements go in or do not go in will depend on a
voir dire
if thats
    what we need to have now.

[21]

With the agreement of counsel, the
voir dire
was held several days later in the trial. Just prior to the start of the
voir dire
,
    Crown counsel advised he was not seeking the admission of the Third Statement.

[22]

On the
voir dire
,
    Sgt.
Bomberry testified about the Gas Station and
    Second Statements. The trial judge ruled that the Gas Station Statement was
    admissible because it was taken when the appellant was not a suspect, but the
    Second Statement was inadmissible as it was taken when the appellant was
    arbitrarily detained.

[23]

The following day, defence counsel renewed
    her motion for a mistrial, arguing that the Crown had referred improperly in his
    opening to the three statements, one of which had now been ruled inadmissible
    and one of which the Crown had withdrawn. Defence counsel recalled the tone Crown
    counsel had used in his opening when referring to the excluded Second Statement,
    when it was put to the jury in clear, loud, slow terms, I dont give a fuck,
    fuck him. Defence counsel submitted it was unlikely a corrective instruction
    would dislodge the impact of that statement.

[24]

The trial judge again dismissed the motion
    for a mistrial, ruling:

The motion for mistrial is dismissed. I acknowledge [defence
    counsel] that what the Crown said in the opening is very unfortunate, that
    never should have been said until it was clear that the statements were going
    to be admitted. However, its also been made very clear to the jury that what
    the lawyers say is not evidence. I will reemphasize that in no uncertain terms
    in my charge, and Im confident that this jury, and the case law supports this
    overwhelmingly, that the jury will follow my instructions. And juries do follow
    judges instructions, and I expect this jury will as well, and I will give a
    very clear instruction that what counsel says in openings or closings, or at
    any time, is not evidence, and the only evidence of any statement by your
    client is the one statement that will be admitted.

[25]

The trial judge did not give a mid-trial corrective
    instruction to the jury about the Crowns reference in his opening to the
    inadmissible statements.

[26]

Following counsels closings to the jury,
    defence counsel requested the trial judge include an express reference in his
    charge to the fact there was evidence about alleged statements made by [the
    appellant] in the opening statement that cannot and should not be considered in
    [the jurys] deliberation. The trial judge stated he was not inclined to do
    so. His charge would instruct the jury that what the lawyers say is not
    evidence, and he was reluctant, three weeks later, to bring up those two
    statements again.

[27]

In his charge, the trial judge instructed the
    jury that there were some things that were not evidence, including: What the
    Crown said in his opening and what both lawyers said in their closings are not
    evidence. This instruction tracked what the trial judge had said in his
    introductory remarks to the jury at the beginning of the trial.

B.

The
    positions of the parties

[28]

The appellant submits the trial judge should
    have declared a mistrial to remedy the prejudice resulting from the Crown
    referring in his opening to the three statements, the admissibility of which was
    in dispute. She argues the Second Statement was highly prejudicial given its
    content and the tone in which it was conveyed by Crown counsel, yet had little
    probative value. The appellant contends the Crowns opening cast her as a liar
    and a belligerent person, giving rise to the risk of propensity reasoning by
    the jury.

[29]

Alternatively, the appellant submits the
    trial judge erred in failing to give the jury a mid-trial instruction about the
    improper contents of the Crowns opening address. He also erred in failing to
    instruct the jury expressly in his charge to ignore the Second and Third
    Statements.

[30]

The respondent acknowledges that the Crown
    should not have referred to the three statements in his opening. However, the respondent
    submits two circumstances rendered those references harmless: (i) the trial
    judges instructions that what counsel said was not evidence and (ii) the
    passage of two weeks from the time of the Crowns opening until the jury began
    its deliberations.

[31]

Alternatively, the respondent submits that if
    the trial judge erred in failing to give a more specific corrective instruction,
    this is an appropriate case for the application of the curative proviso:
Criminal Code
,
    s. 686(1)(b)(iii).

C.

Analysis

[32]

The limits on a Crowns opening address to a
    jury are well-established: the Crown should use an opening to introduce the
    parties, explain the process, and provide a general overview of the evidence
    the Crown anticipates calling in support of its case:
R. v. Mallory
,
    2007 ONCA 46, 222 O.A.C. 239, at para. 338. In an opening statement, the Crown
    should not refer to evidence the admissibility of which is in dispute:
R. v. Smith
(1994),
    120 Sask. R. 221, [1994] S.J. No. 316, (C.A.), at paras. 44 and 47. For
    example, since a statement or confession an accused person made to a person in
    authority does not become evidence until ruled admissible, Crown counsel should
    not refer to it in an opening:
R. v. Truscott
(1960), 126 C.C.C. 109, [1960] O.J. No. 402 (C.A.), at para. 5.

[33]

In the present case, it was improper for
    Crown counsel to refer in his opening address to the three statements the
    appellant made to a police officer when the admissibility of those statements
    had not been ruled or agreed upon. The issue is whether the trial judge took
    adequate steps in the circumstances to mitigate any prejudice to the appellant
    caused by the Crowns improper references.

Mistrial

[34]

The appellant submits the trial judge erred
    in refusing her two requests for a mistrial.

[35]

Mistrials are a remedy of last resort and
    should only be declared to avoid miscarriages of justice:
R. v. A.G.
,
    2015 ONCA 159, 124 O.R. (3d) 758, at para. 50. A trial judge is best positioned
    to assess whether a mistrial is warranted in the circumstances. Consequently,
    an appellate court owes significant deference to a trial judges determination whether
    to grant a mistrial, and should only interfere with a decision to deny a
    mistrial if that decision is clearly wrong or based on an erroneous principle:
A.G.
,
    at paras. 51 and 52.

[36]

Here, as noted above, the trial judge refused
    to declare a mistrial because he intended to give instructions to the jury
    about the improper references made by the Crown in his opening.

[37]

Proposing to use a corrective instruction
    certainly fell within the range of acceptable approaches by which to mitigate
    the prejudice flowing from the improper references in the Crowns opening.
    Accordingly, the trial judge did not err in refusing to declare a mistrial.

Corrective
    instruction

[38]

When improper comments by Crown counsel are
    sufficiently prejudicial, a trial judge has a duty to intervene; a failure to
    do so will constitute an error of law:
R. v. Romeo
,
    [1991] 1 S.C.R. 86, at p. 95;
R. v. A.T
.,
    2015 ONCA 65, 124 O.R. (3d) 161, at para. 38. Accordingly, where the Crown
    refers in its opening to anticipated evidence that subsequently is not led or
    is ruled inadmissible, it is the duty of the trial judge to tell the jury
    explicitly that the statements complained of are not in evidence and they must
    try to free their minds from them:
R. v. Walker
(1910), 15 B.C.R. 100, [1910] B.C.J. No. 18 (S.C.), at para. 7;
Smith
,
    at para. 48.

[39]

Where a trial judge fails to redress properly
    the harm caused by a clearly unfair or significantly inaccurate jury address, a
    new trial may result:
R. v. Rose
, [1998] 3 S.C.R. 262, at
    para. 127. The question is whether, in the context of the entire trial, the
    remarks and the trial judges response or failure to respond caused a
    substantial wrong or miscarriage of justice:
Romeo
, at
    p. 95.

[40]

The trial judge recognized his duty to
    intervene, but failed to do so in the manner required by the circumstances. The
    Crowns reference in his opening to three statements by the accused, the
    admissibility of which was in dispute, called for strong intervention. The
    trial judge should have intervened immediately after objection was made
    following the Crown opening, or certainly no later than the conclusion of the
voir dire
when the trial judge ruled on the admissibility of the statements.

[41]

The trial judge recognized the prejudice that
    could result from the Crowns improper opening. In his
voir dire
ruling, the trial judge had described the Second Statement as not terribly
    probative and highly prejudicial. Yet the trial judge ended up merely making
    a general statement in his charge that what the Crown said in his opening was
    not evidence. With respect, that general statement did not constitute the full
    and emphatic instruction he said he would give, and it failed to redress
    properly the harm caused by the Crowns improper reference to the three
    statements in his opening.

[42]

By failing to give an adequate corrective
    instruction to the jury, the trial judge erred in law.

[43]

The respondent submits that if the trial
    judge erred in failing to give a proper corrective instruction, this would be an
    appropriate case for the application of the curative proviso:
Criminal Code
,
    s. 686(1)(b)(iii). I will consider the availability of the curative proviso at
    the end of these reasons.

V.

Issue 3: Did the trial judge err in dismissing
    the appellants ss. 9 and 10(b)
Charter
application to exclude the Gas
    Station Statement?

A.

The issue stated

[44]

In her Gas Station Statement, the appellant
    said she had not seen Mr. Martin the night of the assault and he had not shown
    up at the Jackhammers bar in Brantford where they had agreed to meet. The
    appellant submits the trial judge erred by dismissing her motion to exclude the
    Gas Station Statement on the ground that Sgt. Bomberry had obtained it in
    violation of her rights under ss. 9 and 10(b) of the
Canadian Charter of Rights
    and Freedoms
.

B.

Analysis

[45]

The appellant submits the trial judge erred
    in holding Sgt. Bomberry did not violate her
Charter
rights because he did not consider whether a reasonable person would conclude
    the appellant was detained at the time she made the Gas Station Statement.

[46]

I would not accept this submission. In his
    ruling on the
voir dire,
the trial judge identified
    and applied the correct legal tests:
R. v. Grant
,
    2009 SCC 32, [2009] 2 S.C.R. 353;
R. v. Suberu
,
    2009 SCC 33, [2009] 2 S.C.R. 460. His conclusion that the appellant was not
    psychologically detained when she made the Gas Station Statement to Sgt.
    Bomberry was fully supported by the evidence: Sgt. Bomberry did not consider
    her a suspect or person of interest at the time; he met her by chance when he
    stopped at the gas station to fuel his vehicle; initially Sgt. Bomberry tapped
    on the window of the car in which the appellant was a passenger and they spoke
    with the window rolled down; the appellant wanted to roll up the window because
    it was an extremely cold night, and she consented to Sgt. Bomberry coming into
    the car to continue the conversation, which lasted another four minutes; when
    Sgt. Bomberry left the car, the appellant and her friend continued on their
    way.

[47]

Although the trial judge did not state
    expressly in his
voir dire
ruling that a reasonable
    person looking at all the circumstances would conclude the appellant was not
    detained, that conclusion was apparent when his ruling is read as a whole. I
    see no error in his decision that Sgt. Bomberry did not violate the appellants
    s. 9 and 10(b)
Charter
rights.

VI.

Issue 4: The admissibility and use of the Gas
    Station Statement

A.

The issues stated

[48]

The appellant submits the trial judge made
    two further errors regarding the Gas Station Statement. He:

(i)

failed to take into account relevant factors
    when determining the statements admissibility given that the Crown intended to
    use the Gas Station Statement to tell the jury the appellant had fabricated the
    statement and was a liar; and

(ii)

failed to instruct the jury adequately on the
    use they could make of the Gas Station Statement.

B.

Admissibility

The
    Crowns intended use of the Gas Station Statement

[49]

The Crown not only asked the jury to conclude
    the appellants exculpatory Gas Stations Statement was false, but also that she
    had fabricated the statement in an effort to avoid culpability. In his closing,
    Crown counsel stated:

[H]er responses to [Sgt. Bomberry] were an absolute and
    deliberate lie, a deliberate and calculated attempt to deflect any and all
    attention away from herself, her family and the activities occurring at 2099
    Second Line Road.

[50]

Crown counsel also pointed to the appellants
    deliberate lies to Sgt. Bomberry as one of several pieces of evidence that
    speaks volumes as to her culpability in this crime. Crown counsel thereby sought
    to use the appellants Gas Station Statement as circumstantial evidence of her
    guilt.

[51]

In her closing, defence counsel did not
    seriously dispute the appellant had made the Gas Station Statement. Instead,
    counsel characterized the statement more as a lying, dishonest way of, I dont
    want to be involved with anything, a dishonest brushoff, and what she said
    was, I dont have anything to say.

Analysis

[52]

Our law distinguishes between an exculpatory
    statement that is disbelieved and rejected by the trier of fact, and one that
    is found to have been fabricated or concocted to avoid culpability. This court
    explained the distinction and its implications in
R. v. Bradey
,
    2015 ONCA 738, 127 O.R. (3d) 721, at paras. 165-174. An alibi or other
    exculpatory statement that is merely disbelieved is not evidence that
    strengthens the Crowns case. By contrast, where the Crown adduces evidence from
    which the trier of fact can infer that the exculpatory statement was
    fabricated, that evidence is capable of supporting an inference of guilt:
    para. 169.

[53]

The reason for distinguishing mere disbelief from
    a finding of fabrication relates to the fundamental principle that the onus of
    proof remains on the Crown throughout a criminal trial. As this court explained
    in
R. v.
    OConnor
(2002), 62 O.R. (3d) 263 (C.A.), at para. 19:

The distinction reduces the risk that a trier of fact may blur
    the need for the Crown to prove the offence charged beyond a reasonable doubt
    with the failure of the accused to provide a credible defence. The distinction
    also recognizes the danger that a trier of fact may attach undue weight to the
    rejection of an accused's explanation and may move too readily from mere
    disbelief to a finding of guilt.

[54]

The implications of the distinction for the
    admissibility of a statement were explained in
Bradey
, at
    paras. 171-173:

In many, if not most, cases, a trier of fact may logically
    infer fabrication from disbelief. But the policy that underpins the distinction
    between disbelief and fabrication sets its face against using disbelief to
    infer fabrication. Instead, to establish fabrication, we insist on evidence
    that is
independent
of the evidence that contradicts or discredits the
    exculpatory explanation

Evidence of fabrication may emerge from the circumstances in
    which the disbelieved out-of-court statement was made For example, the
    circumstances in which a false statement was made may show an intent to mislead
    the police or others or an intent to deflect suspicion from the maker of the
    statement or towards others

The decision in
OConnor
affords some examples of
    circumstances in which a statement was made that might assist in proving that
    the statement was fabricated:

The timing of the statement, for example that the accused
    provided the statement at a time when the police did not suspect or have any
    reason to suspect the involvement of the accused;

The scope of the exculpation provided by the statement; and

The degree of detail provided in the statement. [Citations
    omitted].

[55]

The appellant submits that on the
voir dire
to determine the admissibility of the Gas Station Statement, the trial judge
    failed to consider whether there existed sufficient evidence, independent of
    the falsity of the statement, to demonstrate fabrication.

[56]

A trial judge has a duty to consider the
    effect of the Crowns allegation of fabrication on the admissibility of an
    accuseds statement. This duty persists even where the
voir dire
focuses on other issues relating to the statement, such as voluntariness or
Charter
compliance:
R. v.
    Hall,
2010 ONCA 724, 269 O.A.C. 199, at para. 163.

[57]

The trial judge did not do so in this case.
    That said, since the parties did not ask the trial judge to assess the effect
    of the Crowns allegation of fabrication on the admissibility of the Gas
    Station Statement, his failure to do so is understandable.

[58]

More importantly, I do not regard this
    oversight as materially affecting the admissibility of the Gas Station
    Statement. There was ample independent evidence of fabrication. Unlike the
    circumstances in
Hall
, the Crowns case against
    the appellant did not rest only on circumstantial evidence  three
    eye-witnesses testified she assaulted Mr. Martin. As well, the circumstances in
    which the appellant made the Gas Station Statement afforded some evidence of
    fabrication  the appellant made the statement at a time the police did not
    suspect her, and she provided some detail in the statement, contending Mr.
    Martin did not keep their arrangement to meet at a Brantford bar.

[59]

Consequently, I would not give effect to this
    ground of appeal.

B.

Instructions
    on the use of the Gas Station Statement

[60]

The appellant further submits the trial judge
    failed to provide the jury with clear instructions on the inference they could
    draw from the Gas Station Statement. In particular, the appellant argues the
    trial judge did not instruct the jury on the distinction between an accuseds
    evidence that is disbelieved and evidence that is fabricated. The appellant
    submits such an instruction was necessary to prevent the jury from inferring
    fabrication from disbelief in the circumstances of this case.

[61]

In
OConnor
,
    this court laid down a two-step process for the trier of fact to follow where
    alibi evidence is introduced: paras. 34-38. First, the trier of fact must
    determine whether they believe or have a reasonable doubt about the
    truthfulness of the alibi. Next, if the judge concludes
that
    there is sufficient independent evidence of fabrication of an exculpatory
    out-of-court statement, the judge should instruct the jurors that it is open
    to them to find that the accused fabricated the exculpatory version of events
because
he or she was conscious of having done what is alleged and that they may use
    that finding, together with other evidence, in deciding whether the Crown has
    proven the case beyond a reasonable doubt: para. 37 (emphasis added). If, on
    the other hand, there is insufficient independent evidence of fabrication, the
    jury should be instructed to disregard any disbelieved exculpatory statement
    and decide the case on the balance of the evidence: para. 36.

[62]

It is essential for the trial judge to set out
    clearly the difference between evidence leading only to disbelief and
    independent evidence of fabrication. Where the fabrication instruction is
    given, the trial judge must carefully outline what evidence is capable of
    constituting independent evidence:
OConnor
, at
    para. 38.

[63]

In the present case, the trial judges charge
    does not conform to the requirements set out in
OConnor
. In
    his charge, the trial judge focused his instructions on whether the appellant
    had made the Gas Station Statement. He stated:

When a witness says what he heard Ms. Clause say, you have to
    decide whether you believe Ms. Clause made the statement or any part of itIn
    deciding whether Ms. Clause actually said [the Gas Station Statement], you
    should use your common senseUnless you decide that Ms. Clause made a
    particular remark or statement, you must not consider it in deciding this case.



If you decide that Ms. Clause made remarks that may help her in
    her defence, or if you cannot decide whether she made it, you will consider
    that statement along with the rest of the evidence in deciding whether you have
    a reasonable doubt about Ms. Clauses guilt.

You may give anything you find Ms. Clause said as much or as
    little importance as you think it deserves in deciding this case. It is for you
    to say. Anything you find Ms. Clause said, however, is only part of the
    evidence in this case. You should consider it along with and in the same way as
    all the other evidence.

[64]

With respect, this instruction was not
    sufficient. The Crown sought to use the appellants Gas Station Statement for
    the purpose of demonstrating she was a liar who tried to deflect police
    attention away from herself. Having admitted the Gas Station Statement, the
    trial judge was obliged to give the jury an instruction on the use of the
    statement that incorporated the elements set out in
OConno
r.
    He did not do so. The trial judge did not explain to the jury the difference
    between a finding of disbelief and one of fabrication, nor did he instruct them
    on what they could consider as independent evidence of fabrication.

[65]

The trial judges failure to give such an
    instruction constituted an error of law that prejudiced the appellants right
    to a fair trial in the circumstances of this case.

VII.

Issue 5: The failure to instruct the jury
    adequately regarding the credibility of witnesses

The
    issue stated

[66]

The appellant submits the evidence of Messrs.
    Martin and Henry, and Ms. Styres, was central and highly material to the case
    against her. Their evidence, she argues, contained many material
    inconsistencies relevant to their credibility and reliability: the evidence
    they gave at trial about the incident differed materially from the information
    they provided in their initial statements to the police; in some instances
    their evidence on cross-examination at trial was inconsistent with that given in
    chief; they admitted lying to the police; and Ms. Styres and Mr. Martin
    admitted they lied under oath at the preliminary hearing.

[67]

The appellant contends the trial judge failed
    to provide the jury with adequate instructions that would enable them to assess
    properly the credibility and reliability of these witnesses. It was not enough
    for him to highlight some of the inconsistencies, as he did. The trial judge
    should have given the jury a legal instruction explaining the evidentiary
    effect of prior inconsistent statements, together with specific examples from
    the case.

[68]

The Crown submits the trial judges
    instructions about how to assess the effect of prior inconsistent statements on
    the credibility of these witnesses were functionally adequate and faithfully
    related the defence position to the jury.

Analysis

[69]

I would accede to the Crowns submission.

[70]

The adequacy of the trial judges
    instructions must be assessed in the context of the specific circumstances of
    the case.

[71]

In her closing to the jury, defence counsel
    reviewed in great detail what she submitted were inconsistencies and frailties
    in the evidence of those three Crown witnesses, including their late
    identification of the appellant as the assailant. She argued that witnesses
    lied and the jury should not believe them.

[72]

The trial judge provided counsel with a draft
    of his charge. It contained the standard instruction on the use the jury could
    make of prior inconsistent statements. It also identified some of the prior
    inconsistent statements made by Mr. Martin and Ms. Styres. The trial judge also
    included a statement that all three witnesses admitted lying to the police. In
    the section setting out the position of the defence, the trial judge stated the
    defence was contending the Crowns case relied on the evidence of the three
    witnesses and all of these witnesses admitted that they had lied to the police
    and under oath in respect to this case.

[73]

The trial judge entertained submissions from
    counsel on the draft charge. In respect of the section of the charge dealing
    with prior inconsistent statements, defence counsel requested a minor addition
    to the description of the evidence given by one witness. The trial judge made
    the requested change. Defence counsel raised no other issue about the adequacy
    of this portion of the charge  there was no request to include additional
    examples of prior inconsistent statements by any of the three Crown eye-witnesses
    or to expand the legal instruction on the use of such statements.

[74]

Defence counsels concerns regarding the
    inconsistencies in the evidence and the credibility of the witnesses were well-canvassed
    with the jury. The trial judge was not obliged to go over each of them again in
    detail. That defence counsel did not attempt to press him to do so in the
    pre-charge submissions confirms this. In those circumstances, the charge of the
    trial judge on the use of prior inconsistent statements was adequate. I would
    not give effect to this ground of appeal.

VIII.

Issue 6: Did the trial judge err in failing
    to charge to the jury on the possibility of collusion amongst three Crown
    witnesses?

A.

The issue stated

[75]

Three witnesses identified the appellant as
    the person who struck Mr. Martin in the face with a beer bottle: Mr. Martin,
    Ms. Styres, and Mr. Henry. All three were friends. At the time of the incident,
    they lived together in a house Mr. Styres owned. Mr. Martin and Ms. Styres had
    been romantically involved in the past.

[76]

During the pre-charge conference, defence counsel
    asked the trial judge to instruct the jury on the law regarding collaboration
    and collusion. She submitted there was evidence those three witnesses had
    talked to each other about the appellants involvement in the events.

[77]

The Crown objected to the inclusion of such
    an instruction in the charge, arguing there was an absence of evidence of any
    collusion amongst the three witnesses.

[78]

The trial judge refused to include such an
    instruction, ruling:

I dont see collusion here. I dont see any evidence of collusion.
    All I see is that one comment that, in the statement that he had, Ross Martin
    had spoken to Roni Lee, either the day before or whatever, that he spoke to
    Detective Hill. But other than that, youve not provided any evidence that
    theyve colluded in what their evidence has been before the court. Thats what
    collusion is.

[79]

The appellant submits the trial judge erred
    in failing to charge on possible collusion in light of the evidence in the
    record and the relevance of possible collusion to the credibility assessment of
    the evidence from Mr. Martin, Ms. Styres, and Mr. Henry.

[80]

The respondent submits the trial judge
    properly refused to charge on collusion because the evidence of the dealings
    amongst the three witnesses amounted to nothing more than evidence of contact,
    not the possibility they had joined in concocting evidence.

B.

Analysis

[81]

Collusion can
    arise both from a deliberate agreement to concoct evidence, as well as from
    communication among witnesses that can have the effect, whether consciously or
    unconsciously, of colouring and tailoring their descriptions of the impugned
    events:
R.
    v. B. (C.)
(2003), 167 O.A.C. 264, [2003] O.J. No.
    11 (C.A.), at para. 40. As this court noted in
R. v. F.(J.
)
    (2003), 177 C.C.C. (3d) 1, [2003] O.J. No. 3241 (C.A.), at para. 77, the 
reliability of a witnesss account can be
    undermined not only by deliberate collusion for the purpose of concocting
    evidence, but also by the influence of hearing other peoples stories, which
    can tend to colour ones interpretation of personal events or reinforce a
    perception about which one had doubts or concerns.

[82]

In
R. v. Burke
,
    [1996] 1 S.C.R. 474, the Supreme Court addressed how to deal with the issue of possible
    collusion outside the context of similar fact evidence. The court stated, at
    para. 45:

On the assumption that the evidence is admissible, I am
    prepared to adopt the more conventional approach which would leave it to the
    trier of fact to determine what weight, if any, is to be given to evidence that
    is alleged to have been concocted by means of collusion or collaboration. Under
    this approach, the trier of fact is obliged to consider the reliability of the
    evidence having regard to all the circumstances, including the opportunities
    for collusion or collaboration to concoct the evidence and the possibility that
    these opportunities were used for such a purpose.

[83]

Summarizing the jurisprudence dealing with
    the possibility of tainting by collusion in the context of the treatment of
    similar fact evidence, this court stated in
R. v. F.(J.
),
    at para. 86, that once evidence is admitted, 
the jury must still
    be warned to assess the evidence carefully and to consider whether it can be
    considered reliable given the possibility of deliberate or accidental tainting
    by collusion among the witnesses (citation omitted).


[84]

As a result, in a case where there is an air
    of reality to the possibility of collusion, the jury should be instructed that
    their consideration of
the reliability of the evidence, having
    regard to all the circumstances, should include a consideration of the
    opportunities for collusion or collaboration to concoct the evidence and the
    possibility that these opportunities were used for such a purpose:
B. (C.)
, at
    para. 40.

[85]

In the present case, the evidence, when taken
    as a whole, disclosed there was an air of reality to the possibility of
    collusion amongst the three witnesses who testified the appellant struck Martin
    the face with a beer bottle  Messrs. Martin and Henry, and Ms. Styres.

[86]

Significantly, in their initial statements to
    the police, none of the three identified the appellant as the person who struck
    Mr. Martin in the face with a beer bottle. In addition, both Mr. Martin and Ms.
    Styres admitted they had lied in various pre-trial statements they had given to
    the police.

[87]

Ms. Styres initially told the police she did
    not witness the assault. In her interview with the police the day after the
    assault, she did not identify the appellant as the person who hit Mr. Martin in
    the face with a beer bottle. Instead, she told the police she assumed the
    appellants brothers had reached into the car to get Mr. Martin. Later, at the
    appellants December, 2011 preliminary hearing, Ms. Styres identified the
    appellant as the assailant for the first time.

[88]

In his initial statement to the police, Mr.
    Martin did not identify the appellant as the person who had stabbed him in the
    eye with a beer bottle. At the appellants preliminary inquiry held on December
    7, 2011, Mr. Martin testified that he did not remember who caused him to lose
    his eye. At trial, Mr. Martin stated that at the preliminary inquiry he did not
    give a full description of the appellants involvement in the incident because
    he did not want anyone to get into trouble.

[89]

The police conducted a videotaped interview
    of Mr. Henry the day after the incident. In his description of the events, Mr.
    Henry did not mention that Martin was stabbed in the face by the appellant with
    a beer bottle; he made no mention of any assault on Martin while he was in the
    car. At trial, Mr. Henry testified the appellant reached in with a beer bottle
    and stabbed Mr. Martin in the right side of the face.

[90]

There was evidence that these three
    witnesses had discussed with each other the events regarding the assault on Mr.
    Martin.

[91]

Mr. Henry testified that he did not talk to
    Ms. Styres before giving his statement to the police the day after the
    incident. However, Mr. Henry did state that after the incident, he talked with
    Ms. Styres about what they had observed,
stating the
    two of them observed the same thing and spoke about the identities of the
    people involved in the assault
.
Mr. Henry had
    no idea when he first talked to Ms. Styres about what she might have
    observed.

[92]

In a January 26, 2010 statement
    to the police, Mr. Martin stated the appellant had hit him with a bottle and
    was trying to stab him. He continued: I was talking to Roni [Styres] today and
    thats what she said too. She goes, Are you going to tell them about that?
    At trial, Mr. Martin testified that statement to the police was a lie. He
    testified that he did not recall having a conversation with Ms. Styres on the
    day he gave his police statement.

[93]

Ms. Styres visited Mr. Martin at
    the hospital a few days after the assault. She denied speaking to him about the
    incident at that time. She admitted talking with Mr. Martin on a fairly regular
    basis in the weeks and months after his discharge from the hospital, and they spoke
    about the incident here and there.

[94]

Although Ms. Styres denied
    discussing the incident with Mr. Henry, she admitted she told the police Mr.
    Henry had given her some information about the events, in a quiet
    conversation.

[95]

In those circumstances, there
    clearly was an air of reality to the possibility of collusion amongst the three
    identification witnesses. With respect, the trial judge erred in failing to
    instruct the jury on the issue of collusion.

IX.

Summary and Curative Proviso

[96]

By way of summary, I conclude the trial judge
    made three errors of law: (i) he failed to provide a timely corrective
    instruction regarding the improper references to inadmissible evidence Crown
    counsel made in his opening; (ii) he failed to instruct the jury properly on
    the use they could make of the appellants Gas Station Statement; and (iii) he
    failed to instruct the jury on the possibility of collusion amongst the three
    key Crown witnesses.

[97]

The respondent submits that notwithstanding
    those errors of law, the curative proviso should apply:
Criminal Code
,
    s. 686(1)(b)(iii).

[98]

I disagree. The errors were not minor in their
    nature or effect. Their cumulative effect resulted in an unfair trial: the trial
    judge recognized the prejudicial effect of the inadmissible Second Statement Crown
    counsel referred to in his opening, yet gave no specific corrective
    instruction; the only admissible evidence from the appellant before the jury
    was her Gas Station Statement, but no proper instruction on its use was given;
    and the Crowns case turned on the jury accepting the evidence given by the
    three eye-witnesses, yet the trial judge did not give a necessary instruction
    on an important aspect of their credibility  possible collusion. In those
    circumstances, it would not be appropriate to apply the curative proviso.

X.

Disposition

[99]

For the reasons set out above, I would grant
    the appeal, set aside the appellants conviction, and direct a new trial.

Released: November 17, 2016 (RJS)

David Brown J.A.

I agree Robert J.
    Sharpe J.A.

I agree David Watt
    J.A.


