



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Figliola, 2018 ONCA 578

DATE: 20180625


DOCKET: C58139

Doherty, Epstein and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Maria Figliola

Appellant

Michael Lacy and Deepa Negandhi, for the appellant

Rosella Cornaviera and Susan L. Reid, for the respondent

Heard: May 7 and 8, 2018

On appeal from the conviction entered by Justice Alan
    C.R. Whitten of the Superior Court of Justice, sitting with a jury, on September
    28, 2013 for first degree murder.

Doherty J.A.:

overview

[1]

The appellant was convicted of first degree murder in May 2006. On
    appeal, this court ordered a new trial:
R. v. Figliola
, 2011 ONCA 457
    (
Figliola

#1
). At her re-trial, the appellant was again
    convicted of first degree murder. She appeals.

[2]

The Crown alleged that the appellant murdered her husband. The Crown
    contended that the appellant had a new love interest in her life, and her marriage
    was a very unhappy one. She had also come to the conclusion that her husband
    was worth much more financially to her dead than alive. On the Crowns theory,
    the appellant arranged for someone, likely Daniel Di Trapani, to murder her
    husband.

[3]

The appellant and Mr. Di Trapani were tried together at the first trial.
    On appeal, this court ordered a new trial for both. Mr. Di Trapani was not
    retried, but pled guilty to being an accessory after-the-fact to murder. He did
    not testify at the appellants retrial.

[4]

The evidence heard at the first trial was substantially the same as the
    evidence heard on the retrial, although the appellant did not testify on the
    retrial. That evidence is summarized in
Figliola

#1
and I need
    not repeat that exercise here.

[5]

While the evidence was lengthy, the issues the jury needed to resolve
    were few and straightforward. Mr. Figliola was murdered. No one suggested
    otherwise. There were only two possible verdicts. Either the appellant was
    guilty of first degree murder or she was not guilty. The appellant was guilty
    of first degree murder only if the Crown could prove, beyond a reasonable
    doubt, both that she arranged for the murder of her husband and that her
    husband was murdered pursuant to that arrangement. If the Crown failed to prove
    either, the appellant was entitled to an acquittal.

[6]

On appeal, the appellant submits that the trial judge made various
    errors in his instructions to the jury. She also argues that a series of
    rulings made in the course of the trial relating to the evidence of Teresa
    Mascia rendered the trial unfair and effectively recreated the same problem
    that had led to the order for a new trial at the first appeal.

[7]

I would dismiss the appeal.

The Grounds of Appeal

A.

Did the trial judge adequately relate the evidence to the issues in his
    instructions to the jury?

[8]

The appellant submits that the trial judges lengthy summary of the
    testimony of the witnesses provided to the jury in the course of his instructions
    failed to adequately connect that evidence to the legal issues and positions of
    the parties. The appellant stresses the distinction between simply reviewing
    the evidence to assist the jury in recalling the substance of the evidence and
    relating the important evidence to the issues and the positions of the parties,
    an essential step in the jurys reasoning process: see
R. v. Daley
, 2007
    SCC 53, [2007] 3 S.C.R. 523, at paras. 54-58;
R. v. Newton
, 2017 ONCA
    496, 349 C.C.C. (3d) 508, at paras. 15-18;
R. v. Jack
(1993), 88 Man.
    R. (2d) 93, at 102 (C.A.), affd [1994] 2 S.C.R. 310.

[9]

The appellant further argues that by simply reviewing the mass of
    evidence without relating the evidence to the issues, the trial judge unfairly
    tilted the instruction in favour of the Crown, since, as almost always happens,
    the bulk of the evidence being reviewed was Crown evidence led in support of
    the Crowns position. The appellant argues that a detailed review of the
    testimony without connecting the evidence to the issues or the positions of the
    parties created a misleading impression of the respective strengths of the
    Crown and defence cases.

[10]

To
    demonstrate her point, the appellant focused on the evidence relating to Mr.
    Figliolas gambling habits. The defence claimed that Mr. Figliola was a
    gambling addict who spent thousands of dollars, including money he did not
    have, on both legal and illegal gambling. The defence alleged, and there was
    evidence to support this claim, that Mr. Figliolas death may have been the
    result of unpaid gambling debts owed to violent persons who did not tolerate the
    non-payment of gambling debts. The appellant submits that the evidence
    supporting this theory came from the testimony of many witnesses heard over the
    course of the several months of evidence. She argues that the force of this
    evidence could only have been properly appreciated by the jury if the trial
    judge had assembled at least a summary of that evidence and related it directly
    to the defence position that Mr. Figliolas murder was related to his many
    gambling debts. The appellant submits that the trial judge failed to do so.

[11]

Courts
    have repeatedly emphasized that an assessment of the adequacy of jury
    instructions relating the evidence to the issues requires a functional and
    contextual analysis:
e.g.
see
R. v. P.J.B.
, 2012 ONCA 730, 97
    C.R. (6th) 195, at paras. 46-50. There are essentially two questions:

·

Would the jury appreciate the potential significance of the
    evidence to the issues from both the Crown and defence perspective?

·

Was the instruction fair, in the sense that it represented an
    even-handed treatment of the evidence as it related to the issues the jury had
    to decide?

[12]

The
    nature of the trial is an important feature of the contextual analysis required
    in assessing the adequacy of a jury instruction. This was a lengthy trial. The
    evidence occupied five months and there was a six-week delay between the end of
    the evidence and the jury instruction. It was open to the trial judge, given
    the length of the trial and the long delay between the evidence and the jury
    instruction, to conclude that a thorough review of the evidence would assist the
    jury in discharging its duties. Other trial judges might have approached the
    evidence in a different way. In this court, however, the question is not
    whether the trial judge chose the most effective method of instruction, but
    whether his instructions, as given, adequately related the evidence to the
    issues.

[13]

While
    the appellant is undoubtedly correct in drawing a distinction between the reviewing
    of evidence and the relating of that evidence to the issues and the positions
    of the parties, the former can play an important role in the latter. The entire
    charge must be examined. For example, in relating evidence to an issue, the trial
    judge may refer to certain evidence in a general way. However, when the trial judge
    summarizes the evidence for the jury, he may refer to that evidence in considerably
    more detail. When deciding whether the trial judge adequately related the
    evidence to the issues, the appellate court is entitled, as no doubt the jury
    would, to draw a connection between the reference to a part of the evidence in
    one part of the jury instruction, and the detailed summary of that same evidence
    in another part of the jury instruction. Indeed, this is what occurred in this
    case.

[14]

This
    trial judges instructions can be broken down into three parts. The first part
    included instructions on the applicable legal principles and various
    evidentiary topics. In the second part, the trial judge reviewed the evidence
    of the witnesses at great length. In the third part, the trial judge read to
    the jury the positions of the Crown and defence as provided to him by counsel. Those
    positions included references to parts of the evidence.

[15]

Ms.
    Cornaviera, for the Crown, in her able submissions, stressed that the adequacy
    of the trial judges relating of the evidence to the issues does not depend exclusively
    on what the trial judge said in the part of his instructions in which he
    reviewed the evidence. The merit of her submission is demonstrated by
    considering the jury instruction as it related to the defence position that Mr.
    Figliola was killed because of outstanding gambling debts.

[16]

The
    trial judge addressed this issue in the first part of his instructions under
    the heading Frank Figliolas Gambling. The trial judge reviewed, in some
    detail and in a balanced fashion, the evidence about Mr. Figliolas gambling activities
    and the evidence about possible implications of owing significant gambling
    debts to the wrong people. In this part of his instruction, the trial judge did
    not specifically tell the jury that he was reviewing this evidence in relation
    to the defence claim that Mr. Figliola was murdered because of those gambling
    debts. However, that connection could not have been lost on the jury,
    particularly as they had heard lengthy submissions from defence counsel stressing
    Mr. Figliolas gambling debts and their possible connection to his murder.

[17]

In
    any event, when the trial judge came to the defence position in the third part
    of his charge, he expressly told the jury that it was the defence position that
    Mr. Figliola was murdered because of his gambling debts. He discussed the same
    evidence he had highlighted in the first part of his instruction. He also
    referred to much of that evidence in the course of his witness-by-witness
    review of the testimony in the second part of the instruction.

[18]

Considering
    the charge as a whole, the trial judge drew a clear connection between the
    evidence of Mr. Figliolas gambling and the defence position that his death was
    connected to the gambling debts. The review of the evidence in the second part
    of the trial judges instructions did not detract from what the trial judge
    said in other parts of his instructions. To the contrary, the detailed review
    of the evidence would have assisted the jury in recalling the substance of the
    evidence when assessing the merits of the defence position.

[19]

The
    trial judge dealt with other parts of the evidence in a similar fashion. One
    more example will suffice. The jury heard a great deal of evidence about things
    the appellant did and said after the murder. The Crown relied on much of that
    evidence as circumstantial evidence of the appellants guilt.

[20]

In
    the first part of his instructions, the trial judge explained to the jury how
    they could use evidence of the appellants acts and statements after the murder
    as evidence that she had arranged the murder. He properly instructed the jury
    that before they could use the evidence to draw the inferences urged by the Crown,
    they had to consider and reject the innocent explanations for the statements
    and conduct put forward by the defence. He told the jury that unless those
    explanations were rejected, the acts and conduct of the appellant could not
    further the Crowns case.

[21]

In
    the course of the first part of his instructions, the trial judge referred to parts
    of this testimony by reference to the subject matter,
e.g.
Ms.
    Figliolas lies to the police. He briefly summarized the relevant evidence,
    including the explanations proffered by the defence. In the second part of his
    instructions, when reviewing the evidence of each witness, the trial judge referred
    to the substance of much of the evidence concerning the appellants statements
    and conduct after the murder.

[22]

I
    am satisfied that the charge as a whole left the jury fully informed of the
    substance of the evidence concerning the appellants conduct and statements
    after her husbands murder, the potential relevance of that evidence to the
    Crowns case, and the defence position that the appellants conduct and
    statements were explained by things that had no connection to the death of her
    husband. The jury was properly equipped to consider the impact of this evidence
    on the relevant issues in the case.

[23]

I
    would also reject the argument that the instructions presented the evidence in
    an unbalanced fashion and led to an unfair trial. This was a strong Crown case.
    A large body of circumstantial evidence pointed toward the appellants
    involvement in her husbands murder. An accurate and full treatment of the evidence
    in the charge to the jury inevitably revealed the strength of the Crowns case.
    While this was unfortunate from the appellants perspective, it was not unfair.

B.

Did the trial judge err in instructing the jury that it could convict on
    the basis that the appellant arranged for someone other than Mr. Di Trapani to
    murder her husband?

[24]

At
    trial, it was the Crowns primary position that the appellant arranged with Mr.
    Di Trapani, a friend of the appellants best friend, Teresa Mascia, to murder
    her husband. Mr. Di Trapani had connections with individuals suspected to be
    involved in organized crime.

[25]

There
    was a significant body of evidence to support the Crowns contention that the
    appellant hired Mr. Di Trapani. She provided him with a cellphone they used to
    communicate with each other up until the time of the murder. They did not use
    that phone after the murder. One Crown witness testified that on the night of
    the murder, he drove Mr. Di Trapani to the location of the murder and then to a
    house in the appellants neighbourhood. There was also evidence of payments made
    to Mr. Di Trapani by the appellant in the weeks after the murder.

[26]

At
    trial, the Crown submitted that the jury could convict the appellant of first
    degree murder, even if it was not satisfied that she had hired Mr. Di Trapani
    to commit the murder. The Crown argued that the jury could conclude, beyond a
    reasonable doubt, that the appellant had hired somebody, although perhaps not
    Mr. Di Trapani, to commit the murder and that her husband had been murdered
    pursuant to that arrangement.

[27]

The
    defence argued that on any reasonable view of the evidence, the Crowns case
    depended on establishing that Mr. Di Trapani had been hired by the appellant to
    actually kill her husband, or to arrange for the killing of her husband. The
    defence maintained that there was no air of reality to the Crowns unknown killer
    theory and that leaving that theory with the jury would invite improper
    speculation: see
R. v. Morales
(2006), 81 O.R. (3d) 161, at paras. 21-22.

[28]

The
    Crown can advance alternative theories of liability. However, like defences
    advanced by an accused, a theory of liability can be left with the jury only if
    there is an air of reality in the evidence to that theory. Subject to
    fairness concerns peculiar to individual cases, a theory of liability should be
    left with a jury if a properly instructed jury, acting reasonably, could
    convict based on that theory:
R. v. Largie
, 2010 ONCA 548, 101 O.R.
    (3d) 561, at para. 141.

[29]

The
    reasonableness component of the air of reality test incorporates a limited
    weighing of the evidence by the trial judge. The trial judge must determine
    whether there is a sufficient evidentiary basis for a properly instructed jury,
    acting reasonably, to render a conviction based on that theory of liability:
R.
    v. Cairney
, 2013 SCC 55, [2013] 3 S.C.R. 420, at paras. 19-23;
R. v.
    Pappas
, 2013 SCC 56, [2013] 3 S.C.R. 452, at paras. 21-26.

[30]

I
    am satisfied that there was an air of reality to the Crowns alternative
    theory of liability. Some of the evidence implicating the appellant in the
    murder plot also implicated Mr. Di Trapani in the murder. There was, however, a
    body of evidence implicating the appellant in the murder that did not connect
    Mr. Di Trapani to the murder. The evidence of the appellants motive to murder
    her husband, incriminating statements she made before the murder, statements
    she made after the murder, including what could be construed as a written
    confession provided to her boyfriend, and various lies she told the police, all
    implicated the appellant in her husbands murder without necessarily pointing
    to Mr. Di Trapani as the person with whom she arranged the murder.

[31]

While
    it was not likely, there was a realistic possibility on this evidence that the
    jury could be satisfied, beyond a reasonable doubt, that the appellant had
    arranged for the murder of her husband, but not necessarily be satisfied that
    she made the arrangement with Mr. Di Trapani. The Crowns alternate theory was
    directed at this specific possibility. If the jury were satisfied that the
    appellant arranged for her husbands murder, and that he was killed pursuant to
    that arrangement, she was guilty of first degree murder, regardless of whether
    the jury could identify her partner or partners in crime. The unknown person
    alternative theory provided for that possibility.

C:      Were there errors in the treatment of the evidence of Teresa Mascia
    that rendered the trial unfair and the verdict a miscarriage of justice?

[32]

Teresa
    Mascia was a close friend of the appellant.  She was also a friend of Mr. Di
    Trapani.  He often did various chores at her request. Mr. Di Trapani also knew
    the appellant, although not as well as he knew Ms. Mascia. There was also
    evidence that the appellant had paid Ms. Mascia $23,000 several months after
    the murder.

[33]

Ms.
    Mascia testified as a Crown witness at the first trial. She was declared an adverse
    witness and cross-examined by the Crown. In
Figliola

#1
, the court
    held that her cross-examination went beyond the proper limits of cross-examination
    of adverse witnesses under s. 9(1) of the
Evidence Act
, R.S.C. 1985, c. C-5 (the Evidence Act)
.
    The court further held that the failure to tell the jury that it could not use
    any finding it made with respect to Ms. Mascias credibility as evidence
    against the accused constituted reversible error:
Figliola

#1
, at paras. 61-63.

[34]

The
    Crown decided to call Ms. Mascia on the retrial. Counsel argued that the Crown
    should not be permitted to call her and, alternatively, that the Crown should
    not be permitted to cross-examine Ms. Mascia under s. 9(1) of the
Evidence
    Act
. The reasons of this court in
Figliola

#1
, and
R.
    v. Soobrian
(1994), 21 O.R. (3d) 603, 96 C.C.C. (3d) 208 figured
    prominently in the arguments put to the trial judge. The trial judge allowed
    Ms. Mascia to testify for the Crown, and allowed the Crown to cross-examine her
    on prior inconsistent statements relating to certain specific topics. The
    appellant argues that the trial judges rulings are inconsistent with the
ratio
of both
Figliola

#1
and
Soobrian
.

(i)

The Alleged Errors

[35]

The
    appellant submits that the trial judge made four errors relating to the
    evidence of Ms. Mascia. She contends that these four errors, taken together,
    rendered the trial unfair and resulted in a miscarriage of justice,
    necessitating the quashing of the conviction.
[1]


[36]

First,
    the appellant contends that the trial judge should not have allowed the Crown
    to call Ms. Mascia as a witness. The appellant argues that the Crown called her
    in bad faith with a view to cross-examining her to demonstrate that she was
    lying to protect the appellant, hoping that the jury would use that finding as
    evidence of the appellants guilt.

[37]

Next,
    the appellant submits that the trial judge should not have allowed the Crown to
    cross-examine Ms. Mascia under s. 9(1) of the
Evidence Act
. The appellant argues that
even though
    the Crown satisfied the technical requirements for a finding that Ms. Mascia was
    an adverse witness, there was no probative value in her cross-examination and
    that her cross-examination created a real risk that the jury would improperly use
    the Crowns attack on Ms. Mascias credibility as evidence of the appellants
    guilt. The appellant submits that balancing the very real potential prejudice
    of the evidence against the minimal probative value, the trial judge should
    have exercised his discretion and refused to allow the Crown to cross-examine
    Ms. Mascia.

[38]

Third,
    the appellant submits that the Crown was improperly allowed to re-examine Ms.
    Mascia about an alleged attempt to intimidate a Crown witness. Once again, the
    appellant submits that this re-examination could only have been intended to
    blacken Ms. Mascias character in the hope that the jury would paint the
    defence with the same brush.

[39]

Fourth,
    the appellant contends that Crown counsel, in his closing address made an
    improper use of the evidence that had been wrongly admitted on re-examination
    of Ms. Mascia. The appellant submits that Crown counsels comment also
    increased the likelihood that the jury would misuse Ms. Mascias evidence to
    discredit the defence.

(ii)

Soobrian
and
Figliola

#1

[40]

Much
    of the argument on this ground of appeal centers around the reasons in
Figliola

#1
and
Soobrian
. I begin with an examination of those cases.

[41]

In
Soobrian
, the Crown called a witness named Williams. Williams had
    given a statement to the police that contained an account of the relevant
    events that assisted the Crown. At the preliminary inquiry, Williams testified
    as a defence witness and gave a different account of events, helpful to the
    defence.

[42]

At
    trial, the Crown called Williams knowing he would maintain the position he took
    at the preliminary inquiry. During his examination-in-chief, Crown counsel
    questioned Williams on the contents of his written statement without first
    obtaining a ruling permitting cross-examination under either s. 9(1) or s. 9(2)
    of the
Evidence Act
. The Crown next sought a declaration that Williams
    was adverse under s. 9(1) of the
Evidence Act
, and therefore subject to cross-examination on any
    prior inconsistent statements
. The trial judge declined to make that
    finding but permitted the Crown to pursue further cross-examination on
    statements that fell within s. 9(2) of the
Evidence Act
.

[43]

The
    Crown at trial made its strategy very clear. It had called Williams intending
    to cross-examine him on his prior statement to lay the groundwork for an
    argument to the jury that Mr. Williams obvious dishonesty provided evidence that
    the accused was not telling the truth and the complainant was being truthful:
Soobrian
at, p. 610.

[44]

This
    court emphatically rejected the argument that Williams dishonesty as a witness
    could constitute evidence against the accused. The court indicated that without
    evidence showing collusion between Williams and the accused, Williams lies on
    the witness stand were not evidence against the accused, and had no connection
    to the complainants credibility: see also
R. v. Walker
(1994), 18
    O.R. (3d) 184, at p. 197. The cross-examination of Williams might cause the
    jury to reject his evidence as incredible, but it could not advance the Crowns
    case against the accused:
Soobrian
, at p. 611. The court said, at p.
    612:

It is plain that the witness Williams did not adopt his prior
    statement as true and the only use the jury could properly make of his evidence
    that he saw the things he testified to was either to accept it, reject it or
    give it little weight having regard to the view they took of his initial
    statement to police and his explanation for having made it. But, on the facts
    of this case, the thing for which the jury could not use a finding of
    credibility against Williams, if based on his statement to the police, was to
    support a finding that either or both of the appellants were not credible. Nor
    could it support the truth of the complainants evidence that either of the
    appellants had sexually assaulted her. A finding against the credibility of
    Williams on these grounds would simply neutralize his evidence under oath.

[45]

The
    court next considered s. 9(1) of the
Evidence Act
. The court confirmed that a
trial judge has
    a discretion to refuse to permit cross-examination even though the witness was
    adverse: see also
R. v. Dooley
, 2009 ONCA 910, 249 C.C.C. (3d) 449, at
    para. 158, leave to appeal refused, [2010] 258 C.C.C. (3d) vi (note); D.
    Paciocco, 
Confronting Disappointing,
    Hostile and Adverse Witnesses in Criminal Cases
, (2012) 59 Crim.
    L.Q. 301, at 347-51. The court ruled that the trial judge had properly refused
    to allow cross-examination, as the Crown had proffered no purpose for the
    cross-examination other than to discredit the defence by discrediting the
    witness:
Soobrian
, at p. 611.

[46]

Lastly,
    the court held that in the face of the very real risk that the jury would
    misuse their rejection of Williams evidence in the manner urged by the Crown,
    the trial judge should have given a limiting instruction. The court described
    the required instruction, at p. 613:

The true purport of Williams evidence, including his
    cross-examination by the Crown, was to show that the appellants were not
    credible because Williams was not. The trial judge should have made clear to
    the jury that there was no basis upon which they [could]

use Williams
    evidence to support that conclusion.

[47]

In
Figliola

#1
, the Crown called Ms. Mascia as a witness.
[2]
She had given several statements to the police that were inconsistent with
    parts of her testimony. The Crown sought a ruling that Ms. Mascia was adverse under
    s. 9(1) of the
Evidence Act
. The trial judge declared her adverse, and
    the Crown cross-examined her. However, the Crowns cross-examination went well beyond
    inconsistencies in Ms. Mascias prior statements and grew into a
    cross-examination at large. The Crown suggested to Ms. Mascia that she was
    lying to cover up for her good friend, the appellant, and that she was prepared
    to say anything to protect the appellant. On the appeal in
Figliola

#1
, counsel argued that the cross-examination led
to exactly
    the error identified in
Soobrian
:
Figliola

#1
, at para. 37. The Crown had invited
    the jury to convict the appellant, in part, because her friend, Ms. Mascia, was
    lying for her.

[48]

This
    court accepted the appellants argument in part. The court began by holding that
    the Crown had properly called Ms. Mascia, noting that the Crown had little
    choice but to call Ms. Mascia. She had potentially important evidence to give:
R. v. Figliola
, at para. 45. The court next determined that the trial
    judge had not erred in declaring Ms. Mascia adverse and permitting
    cross-examination on her prior statements under s. 9(1) of the
Evidence Act
:
Figliola

#1
,
    at paras. 47-48.

[49]

The
    court, however, found two errors. The Crowns cross-examination of Ms. Mascia went
    far beyond the cross-examination on prior inconsistent statements permitted
    under s. 9(1). The Crown had, without bringing any application to do so,
    treated Ms. Mascia as a hostile witness and cross-examined her at large. During
    that cross-examination, the Crown set out its cover up theory, contending
    that Ms. Mascia was lying to protect the accused. There was no evidence to
    support that allegation.

[50]

The
    court concluded, at para. 61:

In our view, by taking the tack it did, the Crown --
    inadvertently or otherwise -- strayed into impermissible Soobrian territory.
    Even without any initial intent to do so, the ultimate effect of the
    cross-examination was to create the very scenario that Soobrian envisages:
the

effect of the cross-examination was to shred the credibility of the Crowns
    own witness and to create a factual matrix in which the jury might well
    conclude that Ms. Pignatelli [Mascia] was not only a liar, but was a witness
    lying for the very purpose of covering up for the appellants wrongful deeds and
    that the appellants were therefore liars themselves, and guilty too.
[Emphasis added.]

[51]

The
    court held that in light of the improper cross-examination of Ms. Mascia, the jury
    should have been strongly and immediately instructed that any finding it made
    concerning Ms. Mascias credibility could not be used, either in assessing the
    credibility of the accused, or as evidence of guilt:
Figliola

#1
, at paras. 62-63.

[52]

Three
    propositions emerge from
Soobrian
and
Figliola

#1
:

·

If a witness has relevant evidence to give, the Crown may call
    that witness, even if the Crown expects that the witness will give evidence
    that is inconsistent with a prior statement made by the witness and the Crown
    anticipates bringing an application to cross-examine the witness under s. 9 of
    the
Evidence Act
.

·

A trial judge may refuse to permit cross-examination under s. 9(1),
    even if the technical requirements for a finding of adversity are met. The
    trial judge should not permit cross-examination if that cross-examination would
    undermine the fairness of the trial. Trial fairness will be undermined if there
    is a real risk
that the jury, despite an
    appropriate limiting instruction, could misuse the
cross-examination
    of the Crown witness in the manner described in
Soobrian
.

·

If the Crown is allowed to cross-examine its own witness under s.
    9, the trial judge should caution the jury that the cross-examination may be
    used in assessing that witnesss credibility, but that it cannot assist in
    assessing the credibility of the accused, or in proving the Crowns case
    against the accused unless the witness adopts the prior statements as true or
    there is evidence of collusion between the witness and the accused.

(iii)

The Appellants Arguments

(a)

Should the Crown have been allowed to call Ms. Mascia?

[53]

The
    appellant argues that the Crown called Ms. Mascia in bad faith, intending to
    demonstrate by cross-examining her that she was a liar in the hope that the
    jury would paint the defence with the same brush and reject the defence
    position at trial. The appellant goes so far as to argue that the Crown cannot
    call a witness with a view to attacking the credibility of that witness.

[54]

There
    is no merit to this submission. As pointed out in
Figliola #1
, at
    para. 45, Ms. Mascia had relevant evidence to give in several areas. Indeed, I
    think it is fair to describe her as a central character in the narrative, as it
    relates to events after the murder. The Crown had to call Ms. Mascia or risk
    leaving gaps in the evidence that could have been exploited by the defence.

[55]

The
    appellant was concerned that the Crown called Ms. Mascia with a view to making
    the argument foreclosed in
Soobrian
.
    That concern is properly addressed by carefully controlling the questioning of
    the witness, not by keeping relevant evidence from the jury:
see D.
    Paciocco, at pp. 350, footnote 173;
R. v. Mariani
, 2007 ONCA 329, 220
    C.C.C. (3d) 74, at para. 41.

[56]

When
    the Crown seeks to cross-examine its own witness, the Crown must clearly set
    out the justification for that claim and the nature of the cross-examination
    sought. A trial judge may allow cross-examination on a statement in writing or
    reduced to writing under s. 9(2) of the
Evidence Act
. The trial judge
    may allow cross-examination on all prior statements of a witness if the witness
    is found to be adverse under s. 9(1). The trial judge may also allow
    cross-examination at large if the witness is found to be hostile. No matter the
    level of cross-examination, the Crown must demonstrate that the proposed
    cross-examination has some probative value. This exercise ensures that the
    Crown will identify the specific lines of questioning it seeks to pursue with
    the witness.

[57]

The
    importance of the trial judge properly limiting cross-examination of the Crowns
    own witnesses under s. 9 of the
Evidence Act
is apparent from
Figliola

#1
. The failure to limit cross-examination generated the reversible error.

[58]

If
    the Crown applies to cross-examine its own witness and the trial judge is satisfied
    that the cross-examination will create a real risk that the jury will fall into
    the
Soobrian
error
,
    the trial judge may prohibit cross-examination, even though the witness is
    adverse. In the same vein, if the trial judge is satisfied that the
    cross-examination would do no more than put a version of events before the
    jury, in the form of a prior statement, which the witness will deny and with
    respect to which there will be no other evidence, the trial judge may decline
    to allow cross-examination:
R. v. Fraser
(1990), 55 C.C.C. (3d) 551,
    at 558-59 (BCCA).

[59]

Even
    when the Crown is allowed to cross-examine its own witness on prior
    inconsistent statements, the trial judge should carefully limit
    cross-examination to specific inconsistencies that have some potential probative
    value. In some instances, it will be necessary to fully vet the proposed
    cross-examination on a
voir dire
before determining what part of the
    cross-examination the jury should be allowed to hear.

[60]

The
    appellants argument that the Crown should be prohibited from calling a witness
    who has relevant evidence to give because the Crown anticipates the witness
    will give evidence inconsistent with a prior statement and the Crown will seek
    to cross-examine the witness and challenge the witnesss credibility, has significant
    negative policy implications for the criminal trial process. It is not uncommon
    in certain kinds of prosecutions that persons who have relevant evidence to
    give do not want to testify for the Crown, perhaps because they are friends
    with the accused, or because they are afraid of the accused. If the appellants
    argument were to be accepted, a witness could effectively secure immunity from
    testifying for the Crown by advising the Crown and the defence that he or she
    would give testimony at trial favourable to the defence and inconsistent with prior
    statements made by the witness. A blanket rule against requiring a witness in
    those circumstances to testify would not further the search for the truth and
    would lead some to believe that witness intimidation works.

[61]

In
    my view, if the Crown has a good faith basis for believing that a witness has
    relevant evidence to give, the Crown may call that witness even though the
    Crown expects that the witness will give evidence inconsistent with the Crowns
    position and evidence that contradicts the witnesss prior statements. The
    Crown may call that witness even though it anticipates applying for leave to
    cross-examine that witness and challenging the credibility of that witness in
    certain respects: see D. Paciocco, at pp. 358-59. In choosing to call that
    witness, however, the Crown must realize that the trial judge has a discretion
    to both prohibit and limit cross-examination of the witness. In some
    circumstances, the Crown may call the witness only to find itself stuck with
    the answers given in-chief by that witness.

(b)

Did the trial judge err in declaring Ms. Mascia an adverse witness?

[62]

The
    trial judge declared Ms. Mascia adverse pursuant to s. 9(1) of the
Evidence
    Act
. However, he limited her cross-examination to questions about inconsistencies
    in various statements Ms. Mascia had given concerning when and where she had
    seen a man named Louis Latorre in a car with Mr. Di Trapani on the night of the
    murder. Mr. Latorre had been called by the Crown and had testified that he was
    with Mr. Di Trapani on that evening. According to Mr. Latorres evidence, he had
    driven Mr. Di Trapani to the scene of the murder at approximately 10:30 p.m.,
    and later to a house in the appellants neighbourhood. Ms. Mascia had testified
    that she had seen the two drive by earlier, at approximately 9:30 p.m.

[63]

In
    allowing cross-examination in that area, the trial judge reasoned that nothing
    in the record before him warranted a departure from this courts decision in
Figliola

#1
, that Ms. Mascia was properly ruled an adverse witness. By strictly
    limiting the scope of the cross-examination, the trial judge indicated he hoped
    to avoid any potential morphing of the cross-examination into a cross-examination
    at large: see
R. v. Figliola
, 2013 ONSC 4825, at para. 81.

[64]

The
    trial judge specifically turned his mind to both the potential probative value
    of the cross-examination and any potential prejudice flowing from it. He
    concluded there was some probative value to the cross-examination on the
    inconsistencies, and that any potential prejudice flowing from a limited
    cross-examination could be neutralized by a mid-trial limiting instruction as
    set out in
Soobrian
and
Figliola
    #1
.

[65]

As
    it turned out, the trial judge did not give a limiting instruction after Ms.
    Mascias cross-examination, but only because defence counsel strongly objected
    to any limiting instruction. Defence counsel also resisted any limiting
    instruction in the final jury instructions. The trial judge did, however, give
    a limiting instruction like that described in
Soobrian
and
Figliola

#1
. In the first part of the charge, in the context of referring to
    prior inconsistent statements, he told the jury:

I must also instruct you that if you do find Ms. Mascia not to
    be credible, you cannot use that finding to draw an inference adverse to Maria
    Figliola. In other words, if you conclude that Ms. Mascia is not credible, you
    cannot use that finding to conclude that Maria Figliola is guilty.

[66]

The
    appellant does not take issue with the determination that Ms. Mascia was an
    adverse witness. She contends, however, that the trial judge improperly
    exercised his discretion in allowing the Crown to cross-examine Ms. Mascia. The
    appellant maintains that the probative value/prejudicial effect analysis strongly
    favoured prohibiting cross-examination.

[67]

In
    support of this position, the appellant argues that the Crown was not taken by
    surprise by Ms. Mascias testimony. The Crown knew that Ms. Mascia would give
    evidence inconsistent with prior statements and in conflict with evidence given
    by Latorre. The Crown also had no reason to think that Ms. Mascia would adopt
    any of her prior statements as true, thereby making them substantive evidence
    in the case.

[68]

As
    I understand the thrust of this submission, the appellant contends that
    cross-examination under s. 9(1) of Crown witnesses is limited to situations in which
    the inconsistent evidence is unexpected and/or there is some real likelihood
    that cross-examination will cause the witness to adopt the earlier inconsistent
    statement.

[69]

The
    law is firmly against this submission: see
Dooley
, at para. 161. The
    Crown on the retrial was in no different position than the Crown in
Figliola

#1
. At the first trial, the Crown knew full well that Ms. Mascia would
    give evidence inconsistent with prior statements and that she was unlikely to
    provide helpful evidence for the Crown in respect of some issues. In
Figliola
    #1
, the court did not suggest that the Crown should not have been allowed
    to cross-examine Ms. Mascia because it knew she would give evidence
    inconsistent with her statements, or because there was no real prospect that
    she would adopt her earlier statements. To the contrary, the court implicitly
    accepted that she was properly cross-examined on those statements. The courts
    concern was that the cross-examination went well beyond the limits of s. 9(1).
    The appellants submission would unduly limit the scope of cross-examination permitted
    under s. 9(1) of the
Evidence Act
and is contrary to the holding in
Figliola

#1
.

[70]

The
    appellant next submits that Ms. Mascias evidence, was, by the time the Crown
    called her, of little importance to the Crowns case. The appellant also contends
    that defence counsels offer at trial to present Ms. Mascias evidence by way
    of an Agreed Statement of Facts further diminished the evidentiary value of her
    testimony for the Crown. In effect, the appellant contends that Ms. Mascias testimony
    had so little probative value to the Crowns case that any cross-examination on
    statements inconsistent with her testimony must have been outweighed by the
    potential prejudice it presented.

[71]

I
    do not accept the appellants evaluation of Ms. Mascias evidence. It was for
    the jury to determine the importance of her evidence to the Crowns case. A
    jury could reasonably find some of her evidence, particularly as it related to
    her interactions with the appellant after the murder, significantly probative. More
    importantly, I see no connection between the jurys assessment of the ultimate
    importance of Ms. Mascias evidence to the Crowns case and the trial judges
    decision, made in the course of her evidence, to permit cross-examination on
    certain specific prior inconsistent statements. The trial judges decision was
    aimed at ensuring the jury was fully equipped to assess Ms. Mascias
    credibility, regardless of the ultimate significance they chose to give to all
    or part of her evidence.

[72]

The
    suggestion that the defence offer to present Ms. Mascias evidence by way of an
    Agreed Statement of Facts was relevant to the trial judges exercise of his
    discretion under s. 9(1) is without substance on this record. First, defence
    counsel did not offer any proposed Agreed Statement of Facts and specifically
    did not indicate that it was prepared to agree to anything acceptable to the
    Crown in terms of Ms. Mascias evidence as to when she saw Mr. Latorre and Mr.
    Di Trapani in the vehicle. The defence counsel at trial merely stated he would
    consider an Agreed Statement of Facts. There was nothing before the trial
    judge by way of a proposed Agreed Statement of Facts that was sufficiently
    concrete to potentially have any influence on the exercise of his discretion
    under s. 9(1) of the
Evidence Act
.

[73]

Ms.
    Mascias evidence about when she saw Mr. Latorre and Mr. Di Trapani together on
    the evening of August 6 was directly relevant to the Crowns case. The Crown
    had a good faith basis to believe that she had relevant evidence to give on
    that issue. The evidence she chose to give was inconsistent with prior
    statements she had made and inconsistent with Mr. Latorres evidence. A jury
    could reasonably have been assisted in its assessment of the credibility of
    those answers and her overall credibility by cross-examination on her prior inconsistent
    statements.

[74]

The
    appellants argument that the trial judge undervalued the prejudice component
    of the analysis comes down to the assertion that the trial judge should have
    recognized that the cross-examination would inevitably slide into 
Soobrian
territory. The appellant submits that the inevitability flowed from the
    Crowns realization, both that its witness would give inconsistent evidence and
    that no amount of cross-examination would yield any evidence of substantive
    value to the Crown.

[75]

This
    submission is best answered by examining what happened at trial. The limited
    cross-examination of Ms. Mascia by the Crown was viewed by defence counsel as
    so ineffective that he urged the trial judge to refrain from a mid-trial or
    final instruction cautioning the jury against the improper use of that
    cross-examination. According to defence counsels submissions, the Crowns
    cross-examination had fallen flat and did not give rise to the risk that the
    jury would engage in the improper reasoning prohibited by
Soobria
n. Defence
    counsel believed that an instruction cautioning against the misuse of the
    evidence might well lead the jury down a reasoning path that otherwise would
    not have occurred to the jury.

[76]

I
    agree with trial counsels description of the effect of the cross-examination
    of Ms. Mascia. That cross-examination did not give rise to any
Soobrian
concerns. I view the result of the cross-examination as a strong indication
    that the trial judge correctly weighed the probative value and prejudicial
    effect of the potential cross-examination. He further minimized any possible
    prejudice by telling the jury that Ms. Mascias prior inconsistent statements
    were relevant only to her credibility and could not be used to draw an
    inference adverse to Maria Figliola. The appellant has not demonstrated that
    the trial judge erred in his probative value/prejudicial effect analysis.

(c)

Did the trial judge err in allowing the Crown to re-examine Ms. Mascia?

[77]

At
    trial, the Crown sought to lead evidence of an interaction between Mr. Latorre,
    Ms. Mascia and her husband at a club in 2004. The incident occurred after the
    appellant had been charged, but before the first trial.

[78]

According
    to the Crown, Ms. Mascia and her husband confronted Mr. Latorre about
    testifying for the Crown. A tense incident ended with Ms. Mascias husband
    offering to shake Mr. Latorres hand. When Mr. Latorre refused, Ms. Mascias
    husband spat in his face. Mr. Latorre walked away. Ms. Mascia and her husband
    were charged with intimidating a witness. The charge was later withdrawn
    against Ms. Mascia.

[79]

The
    trial judge initially refused to allow the Crown to lead this evidence through Mr.
    Latorre. After the cross-examination of Ms. Mascia, the Crown sought leave to
    re-examine her about the encounter. The Crown maintained that Ms. Mascias
    cross-examination had created a potentially misleading impression that Ms.
    Mascia had attempted to co-operate with the police throughout their
    investigation, and had made it appear as though Ms. Mascia had been badly
    treated by the authorities.

[80]

The
    trial judge accepted the Crowns argument and allowed re-examination. After
    having her memory refreshed, Ms. Mascia gave a relatively benign account of the
    event. She testified that she had been charged and that the charge had been
    withdrawn.

[81]

The
    trial judge gave the jury an instruction on this evidence immediately after Ms.
    Mascia testified. He told them that the evidence of the incident involving Mr. Latorre
    was admissible only for the purpose of assessing Ms. Mascias credibility and
    that the jury should bear in mind the charge was withdrawn. The trial judge
    gave that direction again in his final instructions, adding that the evidence
    relevant to the incident in the club should not be considered by the jury as
    part of the totality of the evidence to be considered in determining the guilt
    or innocence of Ms. Figliola.

[82]

The
    Crown should not have been allowed to re-examine Ms. Mascia about the incident
    at the club involving Mr. Latorre. I agree with the appellant that defence counsels
    cross-examination of her did not create a misleading picture. Ms. Mascia was
    cross-examined at length about various inconsistent statements. Defence counsel
    was entitled to bring out in his cross-examination of Ms. Mascia that whatever
    problems there may have been with her prior statements and her veracity, they
    never reached the point where the police saw fit to charge her with anything in
    relation to those statements. That line of questioning did not open the door to
    questions about other conduct totally unrelated to anything she said to the
    police.

[83]

I
    also do not see how Ms. Mascias evidence about her encounter with Mr. Latorre
    could have any positive or negative impact on her credibility. On the evidence
    the jury heard, Ms. Mascia did not do anything that could reasonably have had any
    negative impact on her credibility as a witness. Clearly, the fact that she was
    charged, when those charges were later withdrawn, cannot support the inference
    that she intimidated or threatened Mr. Latorre. I do not see how this line of
    re-examination could have assisted the jury in evaluating Ms. Mascias
    credibility.

[84]

Although
    I am satisfied that the questions should not have been asked, I am equally
    satisfied they worked no unfairness on the appellant. I see virtually no possibility
    that the jury used this evidence for anything. Further, the trial judges
    twice-given, strong admonition that the evidence could not assist in proving
    the case against the appellant was a strong and effective prophylactic.

D: The Crowns closing

[85]

Mr.
    Latorre testified that initially he did not voluntarily come forward to tell
    the police what he knew because he was afraid. Crown counsel, in his closing,
    referred to evidence that the Crown alleged gave credence to Mr. Latorres
    assertion that he was afraid. The evidence identified by the Crown included Ms.
    Mascias evidence about the incident at the club involving her, her husband and
    Mr. Latorre. The Crown argued that Ms. Mascia and her husband had intended to
    frighten and intimidate Mr. Latorre and that this gave some validity to his
    assertion about being afraid.

[86]

Defence
    counsel at trial argued that the Crown had improperly suggested to the jury
    that it could use Ms. Mascias evidence about her encounter with Mr. Latorre to
    buttress Mr. Latorres credibility. Counsel submitted that the trial judge had
    made it clear that the evidence of the encounter was relevant only to Ms.
    Mascias credibility and that the Crowns argument directly contravened that
    ruling. Defence counsel asked for a mistrial, or alternatively an immediate and
    strong instruction to the jury telling them that Crown counsels comment was
    improper and should be ignored.

[87]

The
    trial judge described the Crowns submission tying Mr. Latorres fear of
    testifying to Ms. Mascias evidence about the encounter in the club as
    problematic since Mr. Latorre had not testified about the incident or
    suggested that he was in any way intimidated by Ms. Mascia. The trial judge
    declined to order a mistrial or provide an immediate curative instruction. He
    indicated he would deal with the issue in his final instructions.

[88]

In
    his final instructions, the trial judge pointed out to the jury that the
    evidence of the encounter between Mr. Latorre and Ms. Mascia was relevant only
    to her credibility. He told the jury that there was no evidence that the
    incident frightened Mr. Latorre or had any impact on him. Finally, the trial
    judge repeated his instruction that the evidence had nothing to do with the
    guilt or innocence of Ms. Figliola.

[89]

I
    agree with the appellant that Ms. Mascias evidence about her interaction in
    the club with Mr. Latorre could not support Mr. Latorres evidence that he did
    not initially come forward because he was afraid. As pointed out by the trial
    judge, there was simply no evidence of Mr. Latorres reaction, if any, to the
    events described by Ms. Mascia.

[90]

I
    am also satisfied that the Crowns single misstep in a lengthy closing argument
    had no impact on the fairness of the trial. A declaration of a mistrial would
    have been a gross overreaction. The trial judges comments in his closing
    instructions to the jury effectively neutered any possible harm the Crowns
    comment may have caused.

conclusion

[91]

The
    appellants trial was not perfect. No trial is. The minor errors described above
    had no impact on the fairness of the trial and give no cause to doubt the
    verdict.

[92]

I
    would dismiss the appeal.

Released: DD  JUN 25 2018

Doherty J.A.

I agree Gloria Epstein J.A.

I agree S.E. Pepall J.A.





[1]

During oral argument, counsel for the appellant suggested that
    if any of the alleged errors amounted to an error in law, the appellant was also
    entitled to a new trial. Counsel contended that the Crown could not rely on the
    curative proviso and the court could not invoke the proviso, as it had not been
    raised by the Crown in its factum.

Without in any way accepting the
    merits of this submission, I think the appeal should be decided on the basis of
    the arguments presented in the appellants factum  were there errors in the
    treatment of Ms. Mascias evidence that rendered the trial unfair and the
    verdict a miscarriage of justice?



[2]
At the time of the first trial, Ms. Mascia was married and using her husbands surname
    Pignatelli. By the time of the second trial, she was divorced and was using her
    own surname.


