



C
OURT
    OF APPE
AL FOR ONTARIO

CITATION: R. v. Reddick, 2021 ONCA 418

DATE: 20210614

DOCKET:
C
67992

Lauwers, Trotter and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeremy Reddick

Appellant

Delmar Doucette, for the appellant

Benita Wassenaar, for the respondent

Heard: March 18, 2021 by video
    conference

On appeal from the conviction entered by
    Justice Helen A. Rady of the Superior Court of Justice, sitting with a jury, on
    September 19, 2018.

Trotter
    J.A.:

A.

INTRODUCTION

[1]

Jeremy Reddick appeals his convictions for second
    degree murder and assault with a weapon.

[2]

The appellant was drinking with some friends at
    a park in London, Ontario. An argument broke out among the appellant, Dakoda Martin,
    and Andre Williams. It soon turned physical. The appellant pulled out a knife.
    Mr. Martin died from a stab wound to his chest; Mr. Williams was stabbed in the
    back, but his wound was not serious. The appellant walked away from the scene
    and dropped the knife into a sewer. When he was arrested moments later, the
    appellant told the police, They jumped me.

[3]

At trial, the appellant testified and contended
    that he was attacked by the two victims at the same time. In order to defend
    himself, the appellant pulled out a knife. He swung the knife behind him; it
    was at this point that the victims sustained their injuries. As he was trying
    to get away, he was pursued by Mr. Williams.

[4]

The appellant submits that the trial judge erred
    in her final instructions to the jury on after-the-fact conduct, intoxication,
    and the permitted use of the they jumped me utterance. The appellant did not
    draw any of these shortcomings to the trial judges attention at the time.
    Although the trial judges instructions were deficient in some respects, I
    would dismiss the appeal.

B.

FACTUAL OVERVIEW

[5]

The appellant consumed alcohol, marijuana, and
    perhaps other drugs with about five other people in a London park. Dakoda
    Martin, Andre Williams, Aliesje Alvarado, and the appellant were part of this
    group. The latter three testified about the fight that resulted in the death of
    Mr. Martin and the injury to Mr. Williams. A passerby, Jonathan Jones, also
    witnessed the incident and provided very damning evidence against the
    appellant.

[6]

The appellants evening began after work when he
    and a co-worker shared a pitcher of beer at a local bar. Later in the night,
    the appellant met up with Mr. Williams and another man at a different bar,
    where they drank beer and tequila and consumed some cocaine. Mr. Martin and Ms.
    Alvarado eventually joined them. The group continued to drink and consume
    cocaine at the bar, then temporarily separated before reuniting at the park.
    Roughly two hours later, around 3:00 a.m., the fight broke out among the appellant
    and the victims. The witnesses all gave different versions of what happened.
    For some, their testimony at trial differed from their earlier police
    statement.

[7]

The appellant testified that the altercation
    started over his mickey of whiskey. He accused Mr. Williams of stealing it
    and called him a goof. Mr. Williams challenged the appellant to repeat his
    comment. The appellant did so, and Mr. Martin and Mr. Williams attacked the
    appellant from behind, beating him and pummelling him with their fists. The
    appellant fell to the ground and pulled out a knife. Holding the knife in his
    right hand, with the blade facing out, he made a slashing motion behind him two
    or three times. He said his intent was to scare the two men and end the attack.

[8]

Mr. Williams testified that the altercation
    started over the appellants conduct toward Ms. Alvarado. The appellant had
    been flirting with Ms. Alvarado, and she asked Mr. Williams to tell the
    appellant to leave her alone. When Mr. Williams and Mr. Martin told the
    appellant to stop bothering Ms. Alvarado, the appellant became angry. The three
    men stood up, the appellant and Mr. Martin began to tussle, and Mr. Martin fell
    to the ground as if he had been knocked out. Mr. Williams pushed the appellant
    off Mr. Martin and tried to punch the appellant, but he slipped before he
    could. He thought the appellant punched him in the back, and only realized
    later that he had been stabbed. Contrary to his trial testimony, in his police
    statement, Mr. Williams said the altercation started over the appellant making
    a rude comment.

[9]

Ms. Alvarado testified that she walked away from
    the group after telling Mr. Williams that the appellant was bothering her. A
    few minutes later, she saw the appellant and Mr. Martin fighting. She was
    unsure who threw the first punch, but she saw Mr. Martin fall to the ground. He
    was bleeding. When she went to him, she saw he had a wound in his chest. Ms.
    Alvarados testimony that the appellant was only fighting Mr. Martin was
    inconsistent with her police statement, where she said the appellant was a
    single person trying to fight two men, i.e., Mr. Martin and Mr. Williams.

[10]

Mr. Jones had just finished his shift as a
    bouncer at a nearby bar and was on his way to his girlfriends place. He had
    not consumed any alcohol or drugs. Mr. Jones testified that, as he was walking
    past the park, he heard a commotion and yelling. He could see a larger man in a
    yellow shirt (the appellant) yelling at a woman, a smaller Caucasian man (Mr.
    Martin), and a smaller Black man (Mr. Williams). The appellant was swinging at
    the victims in a haymaker motion. Mr. Jones view was obstructed for a few
    seconds as he passed some bushes, but when the group came back into view, Mr.
    Martin was lying on his back, with the appellant on top of him, making punching
    or stabbing motions toward Mr. Martins chest. Mr. Williams was moving away
    from the appellant. Mr. Jones did not see Mr. Williams fighting the appellant. Mr.
    Jones called 911 and the police arrived almost immediately. In his police statement,
    Mr. Jones did not tell the police that he saw the appellant making a punching
    or stabbing motion at Mr. Martin.

[11]

At the end of the fight, the appellant walked
    away, toward the street. He testified he knew Mr. Martin had been hurt when he
    saw him fall to the ground. When he arrived at the street, he dropped his knife
    through the sewer grate. He continued walking and called his wife to tell her
    he had been jumped, the police were on their way, and he would likely be
    arrested. When the police arrived, he yelled, They jumped me. He complied
    with the officers orders, and they arrested him.

[12]

Mr. Martin suffered three wounds: an incised
    stab wound to his right thigh; a perforating stab wound to his right upper arm;
    and a downward-directed, plunging stab wound to his right upper chest, just
    below the clavicle. The chest wound was fatal.

[13]

Mr. Williams suffered a superficial stab wound
    to his lower left back.

[14]

The appellants only injuries were a swollen lip
    and a scratch on his left shoulder.

C.

AFTER-THE-FACT
    CONDUCT

[15]

The appellant submits that the trial judge erred
    in her instructions on the use the jury could make of the after-the-fact
    conduct in this case, being the evidence that the appellant walked away from
    the fray and then dropped the knife into a sewer.

[16]

The appellant focuses on the following aspects
    of this instruction:

Evidence of what a person did after an
    offence was committed may help you decide whether it was that person who
    committed it
. It may help, it may not. What a
    person did after an offence was committed may indicate that he acted in a way
    which, according to human experience and logic, is consistent with the conduct
    of a person who committed the offence and inconsistent with the conduct of
    someone who did not do so. On the other hand, there may be another explanation
    for what Mr. Reddick did afterwards, something unconnected with participation
    in the offences charged.



To decide the reason for what Mr. Reddick did
    afterwards, you will consider all of the evidence. Of particular importance is
    evidence that offers an explanation for the conduct. You must not use this
    evidence about what Mr. Reddick did afterwards in deciding or helping you to
    decide that Mr. Reddick
committed the offences charged
unless you reject
    any other or innocent explanation for it. If you do not or cannot find that Mr.
    Reddick did those things because he was conscious of having done what is
    alleged against him, you must not use this evidence in deciding or in helping
    you to decide that Mr. Reddick committed the offences charged.

On the other hand, if you find that anything
    Mr. Reddick did afterwards was because he was
conscious of having done what
    is alleged against him
, you may consider this evidence together with all of
    the other evidence in coming to your verdict. [Emphasis added.]

[17]

The appellant objects to the trial judges
    opening instruction that: Evidence of what a person did after an offence was
    committed may help you decide whether it was the person who committed it. The
    appellant submits that this instruction was irrelevant and unhelpful because
    there was no question that the appellant stabbed Mr. Martin and Mr. Williams.

[18]

I disagree. The instruction was legally correct.
    It respected the principle that the ultimate decision as to who-did-what is the
    province of the jury. Among other things, the trial judge said, Deciding the
    facts  is your job and not mine.  Only you decide what happened in this case.
    However, in her final instructions, when reviewing the elements of second
    degree murder in s. 229(a) of the
Criminal Code
, on the threshold
    question of whether the appellant caused Mr. Martins death, the trial judge
    said, May I suggest, ladies and gentlemen, that you will have little
    difficulty answering this question, Yes.

[19]

The appellant further contends that the
    instructions were erroneous in their references to committed the offences
    charged and conscious of having done what is alleged against him, as
    underscored above. The appellant acknowledges that the after-the-fact conduct
    could be used to infer that he had not acted in self-defence. However, he
    submits that the manner in which this evidence was left with the jury permitted
    them to use it to distinguish between liability for second degree murder and
    manslaughter. He submits that the jury should have been specifically instructed
    not to use the evidence in this manner.

[20]

As this court has held, there is no
per se
rule declaring post-offence conduct irrelevant to the perpetrators state of
    mind: see
R. v. Jackson
, 2016 ONCA 736, 33 C.R. (7th) 130, at para. 20, citing
R. v. Rodgerson
, 2015 SCC 38, [2015] 2
    S.C.R. 760, at paras. 20-22. See also
R. v. White
, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 40, 42;
R. v. Calnen
, 2019 SCC 6, [2019] 1
    S.C.R. 301 at paras. 119-151, 158,
per
Martin J. (dissenting in part, but not on this point);
R. v. S.B.1
, 2018 ONCA 807, 143 O.R.
    (3d) 81, at paras. 66-71;
R. v. McLellan
, 2018 ONCA 510, 362 C.C.C. (3d) 183, at paras. 40-49, leave to
    appeal refused, [2019] S.C.C.A. No. 338;
R. v. McCullough
, 2021 ONCA 71, 154 O.R. (3d) 171, at para. 43.

However, its relevance will depend on the
    nature of the after-the-fact conduct, the live issues at trial, and whether the
    evidence, as a matter of logic and human experience, is capable of assisting
    the jury in determining the accused persons state of mind.

[21]

Moreover, a trial judges instructions on after-the-fact
    evidence must be evaluated in the context of the charge as a whole, and the
    circumstances of the case:
Calnen
, at para. 8.

In
R. v. Adan
, 2019 ONCA 709, Watt J.A. spoke of the broad range of
    considerations at play when reviewing the adequacy of instructions on
    after-the-fact conduct, at para. 35:

Instructions necessary to prevent a jury from
    mishandling of evidence of after-the-fact conduct are case-specific. Whether a
    trial judges instructions were sufficient depends on the significance of the
    nature of the conduct involved; the use made of the evidence at trial; the
    instructions given about its use; and the positions of the parties about the
    adequacy of those instructions. Some background is necessary to evaluate the
    claim.

[22]

In this case, it is especially important to
    evaluate the use to which this evidence was put at trial. The appellants
    actions in walking away from the scene and dropping the knife in the sewer linked
    the confrontation with the victims with his utterance that They jumped me.
    The trial was focused on these two endpoints in the dispute about whether the
    appellant acted in self-defence. This was the predominant, if not singular,
    issue at trial.

[23]

Although the appellant was asked about walking
    away and discarding the knife both in his examination-in-chief and
    cross-examination, this evidence assumed little prominence at trial. Crown
    counsel made only a passing reference to it in his closing address to the jury;
    his submissions focused on self-defence. Defence counsel made greater use of
    this evidence  especially the fact that the appellant walked away  in
support
of his self-defence claim. He
    said the following:

We know Mr. Reddick availed himself of the
    easiest thing he could to stop a fight and to get away, his knife  and it
    worked. Disastrous consequences but it worked.

After hes no longer being set upon or
    attacked, my words, he leaves very quickly. Once hes away, he begins walking
    until hes arrested. You heard the testimony of the officer that he is not
    running away.

He left quickly, by Mr. Reddicks testimony,
    walked away very quickly, got rid of the knife, continued on and was arrested and
    said I got jumped.

[24]

The crux of the trial revolved around the
    competing accounts of Mr. Williams, Ms. Alvarado, Mr. Jones, and the appellant.
    Collectively, their evidence focused on how the fight started and who-did-what-to-whom.
    The after-the-fact conduct assumed a subordinate role at trial.

[25]

The appellants potential liability for
    manslaughter was left to the jury as an included offence. However, little
    attention was given to manslaughter at trial. In their closing addresses,
    neither counsel mentioned the word manslaughter. The sole focus was on
    self-defence. This focus may well have been guided by the reality that the
    victim died from a plunging wound to his heart, making manslaughter an
    unlikely, if not implausible outcome of this trial.

[26]

I agree that the evidence of the appellant
    walking away from the scene and the disposing of the weapon used to kill the
    victim would not have assisted the jury in determining whether the appellant
    had the requisite intent for murder. As a matter of human experience and logic,
    this conduct was equally consistent with manslaughter as it was with second
    degree murder. But nobody  not the trial judge, Crown counsel, or defence counsel
     invited the jury to draw that inference. It may have been more helpful had
    the charge to the jury foreclosed that line of reasoning. However, such an
    instruction was not requested.
The
    trial judge invited input from counsel on her proposed instructions to the
    jury. She previewed her draft instructions on after-the-fact conduct, to which
    the appellant stated that he had no difficulty. No objection was registered
    after the trial judge delivered her charge, and no explanation has been
    advanced for the failure to object. There is no assertion of ineffective
    assistance of counsel.

[27]

Returning to
Adan
, Watt J.A. placed great emphasis on the positions taken by the
    parties at trial. Employing a functional approach to the assessment of jury
    instructions, he discussed the important role of counsel, at para. 63: 
A failure to object to an instruction later
    advanced as erroneous before a reviewing court may say something about the
    overall accuracy of the instructions, the fairness of the charge, and the
    seriousness of the alleged misdirection. See also
McCullough
, at paras. 60-64.

[28]

Although the trial judges instructions on
    after-the-fact conduct could have been more thorough, I am not satisfied that
    they amount to error. If I am wrong in this assessment, I would apply the
    curative proviso in s. 686(1)(b)(iii) of the
Criminal
    Code
. In the context of the entire trial, and the
    manner in which the case was litigated, any deficiencies were minor. The case
    turned on the competing eyewitness accounts, the appellants testimony, and his
    They jumped me utterance. There was no substantial wrong or miscarriage of
    justice:
R. v. Vorobiov
, 2018 ONCA 448, at paras. 69-71, leave to appeal refused, [2019]
    S.C.C.A. No. 440.

[29]

I would dismiss this ground of appeal.

D.

INTOXICATION

[30]

Regardless of what instigated the fight that
    erupted in the park that night, alcohol and drugs were involved in the
    evenings events. Everyone was drinking and smoking marijuana that night, both in
    the park and before they arrived there. The appellant had been drinking before;
    he also admitted consuming cocaine.

[31]

During the first pre-charge conference, the
    trial judge raised the issue of intoxication with defence counsel, saying, I
    want to know what you say about that. After further discussion, the trial
    judge followed up and asked, But its not being advanced as a defence or a
    partial defence in this case? Defence counsel answered, No.  Well, its just
    a, I think its a factor in the overall picture, and, I dont  know how
    deeply Your Honour ought to delve into that, quite frankly, other than the fact
    I dont think thered be any question in anyones mind that drinking and drugs
    form part of the overall scenario. The colloquy ended with the trial judge
    saying: I agree, I agree. I just needed to know that its not being advanced,
    or youre not asking me to cover it as a partial defence, if I can put it that
    way.

[32]

In his closing address to the jury, defence
    counsel made reference to alcohol and drug consumption in the park; however,
    his main focus was on self-defence. Defence counsel said to the jury, He never
    wanted to hurt much less kill anyone; he wanted to stop from being attacked.

[33]

Crown counsel also referred to the appellants consumption
    of alcohol. Earlier in the trial, in cross-examination, the appellant admitted
    that he was always in control of his body and his actions, and that he acted
    voluntarily. Building on this theme, Crown counsel told the jury in his closing
    submissions that the evidence of consumption did not assist the appellant
    because he acted voluntarily that night.

[34]

In her final instructions, the trial judge
    addressed the issue of intoxication on more than one occasion. She reviewed
    some of the evidence on the drug and alcohol consumption of Mr. Williams, Mr.
    Martin, Ms. Alvarado, and the appellant. The trial judge also addressed the
    issue of intoxication when explaining the fault requirements for murder in s.
    229(a) of the
Criminal Code
. She instructed the jury that they could consider the words and
    conduct of the appellant before, during, and after the event to determine his
    state of mind. As she said, They may help you decide what he meant or did not
    mean to do. Referring to the appellants evidence, the trial judge said:

In cross-examination he testified that he knew
    where ones heart is located in ones chest and he was aware that a stabbing
    wound to the chest can and is likely to cause bodily harm. He denied attacking
    Mr. Martin.
He said he had no mental health issues, he was pretty
    intoxicated, and that I think were his exact words, but in control of his body
    and movements
. [Emphasis added.]

[35]

The trial judge then mentioned the evidence of
    police officers who said that the appellant had no trouble complying with their
    commands or directions that night. This was followed by the following
    instruction:

You may conclude as a matter of common sense
    that if a sane and sober person does something that has predictable
    consequences, that person usually intends or means to cause those consequences.
    But that is simply one way for you to determine a persons actual state of
    mind, what he actually meant to do.
It is a conclusion that you may only
    reach however after considering all of the evidence.
It is not a conclusion
    you must reach. It is for you to say whether you will reach that conclusion in
    this case. [Emphasis added.]

[36]

There was no objection to these instructions
    other than defence counsel noting that a passage had been omitted from the
    draft instructions on the issue of the intent for murder (in para. 34, above).
    The trial judge advised the jury of the omission and then re-read the entire
    passage, with the following, previously omitted, excerpt included:

You will want to consider Mr. Reddicks
    evidence on this point. He said that he wanted to scare Mr. Martin and Mr.
    Williams in order to stop their attack on him.

[37]

The appellant raises a number of complaints
    about the instructions related to intoxication. Before addressing them, I
    emphasize that the appellant did not rely upon the partial defence of
    intoxication. In support of his position that he acted in self-defence, he
    asserted that he did not intentionally stab either victim; instead, they were
    injured when the appellant waved the knife from behind, as he tried to stand
    and get away from the confrontation. In this sense, the appellant asserted that
    the injuries he caused were accidental.

[38]

The appellant submits that the trial judge erred
    in the manner in which she characterized the appellants lack of sobriety by tracking
    the Crowns cross-examination of the appellant and consequently conflating the
    different levels of intoxication recognized in the jurisprudence. In
R. v. Daley
, 2007 SCC 53, [2007] 3
    S.C.R. 523, at paras. 41-43, the Supreme Court of Canada addressed three
    legally relevant degrees of intoxication: (a) mild intoxication, which is not
    recognized as a factor or excuse in determining whether the accused possessed
    the requisite
mens rea
;
    (b) advanced intoxication, which may be sufficient to raise a reasonable
    doubt about the requisite
mens rea
; and (c) extreme intoxication, which is akin to automatism,
    negates voluntariness, and is a complete defence to criminal responsibility.

[39]

The appellant contends that, by referring to the
    appellants evidence about being in control of his bodily movements, the trial
    judge set the bar too high by suggesting that only extreme intoxication could
    undermine the intent for murder. She should have focused on advanced
    intoxication. In
Daley
,
    at para. 41, Bastarache J. said that advanced intoxication will most often be
    the degree of intoxication the jury will grapple with in murder trials: see
    also
R. v. Robinson
,
    [1996] 1 S.C.R. 683, at para. 49.

[40]

First, there was nothing improper about the
    Crowns cross-examination on the appellants degree of intoxication. He was
    entitled to test the appellants evidence in the way that he chose. Defence
    counsel did not object. Although the appellant now attempts to link this aspect
    of the cross-examination to the intent for murder, it would appear that, in
    pursuing this line of questioning, the Crown was focused on self-defence.

[41]

Second, it would have been better had the trial
    judge clarified the distinction between levels of intoxication for the jury,
    but she was not asked to do so. Taking the charge as a whole, the jury was
    properly focused on the appellants actual state of mind at the time of the
    incident, specifically in relation to whether he formed one of the intents in
    s. 229(a) of the
Criminal Code
. This was all within the context of a trial where the appellant
    made a tactical decision to rely on a single defence  self defence  and did
    not purport to rely on the partial defence of intoxication:
R. v. Pomeroy
, 2008 ONCA 521, 91 O.R.
    (3d) 261, at para. 123.

[42]

As for the sane and sober passage in the final
    instructions, the appellant contends that it was incomplete. The instruction is
    set out above, at para. 35. The appellant takes issue with the following
    sentence: It is a conclusion that you may only reach however after considering
    all of the evidence. The appellant contends that the trial should have said:
    It is a conclusion that you may only reach, however, after considering all of
    the evidence,
including evidence about Mr. Reddicks consumption of alcohol
    (and drugs)
.

[43]

It would have been preferable had the trial
    judge completed the sentence in the manner now suggested on appeal. Once again,
    she was not asked to do so. In any event, this omission does not amount to
    error; the jury would surely have understood that all of the evidence
    included the appellants evidence, which was thoroughly reviewed by the trial
    judge in other parts of her charge.

[44]

I would dismiss this ground of appeal.

E.

THE
EDGAR
INSTRUCTION

[45]

As noted above, as the appellant was walking
    away from the altercation, he was intercepted by the police. Almost
    immediately, the appellant said, They jumped me. This ground of appeal
    concerns the use the jury could make of this utterance.

[46]

The appellant submits that the trial judge
    failed to provide the jury with sufficient guidance about how to use this
    evidence. The Crown contends that, if there was a lack of guidance, the appellant
    benefited from it because the jury was not constrained in the use they could
    make of this statement.

[47]

In
R. v. Edgar
, 2010 ONCA 529, 101 O.R. (3d) 161, leave to appeal refused, [2010]
    S.C.C.A. No. 466, this court recognized an exception to the rule prohibiting the
    admission of prior consistent statements by an accused person. An accused
    persons spontaneous out-of-court statements made upon arrest, or when first
    confronted with an accusation, may be admitted as evidence of the reaction of
    the accused to the accusation and as proof of consistency: at para. 72.
    However, such statements may be admitted only if the accused testifies.
    Moreover, as Sharpe J.A. wrote, these statements are not strictly evidence of
    the truth of what was said, unless they are admissible under another hearsay
    exception; instead, they are evidence of the reaction of the accused, which is
    relevant to the credibility of the accused and as circumstantial evidence that
    may have a bearing on guilt or innocence: at para. 72. See also
R. v. Liard
, 2015 ONCA 414, 327 C.C.C.
    (3d) 126, at paras. 44-92, leave to appeal refused, [2015] S.C.C.A. No. 402.

[48]

In this case, the appellants utterance was
    properly admitted. He testified in his own defence, and the utterance was made
    upon arrest. The trial judge did not restrict this utterance from being used
    for the truth of its contents, as envisaged in
Edgar
; instead, she instructed the jury in the following manner:

In this case there is evidence that Mr.
    Reddick said to the police when they apprehended him words to the effect, I
    was jumped.
That statement may help Mr. Reddick in his defence.
You
    must consider those remarks that may help Mr. Reddick, along with all of the
    other evidence even if you do not believe them. In other words, you must
    consider all the remarks that might help Mr. Reddick even if you cannot decide
    whether you believe him.

If you decide that Mr. Reddick made a remark
    that may help him in his defence, you will consider that statement along with
    the rest of the evidence in deciding whether you have a reasonable doubt about
    his guilt
. You may give anything you find Mr.
    Reddick said as much or as little importance you think it deserves in deciding
    this case. Its only for you to say. Anything that you find Mr. Reddick said
    however is only part of the evidence in this case. You should consider it along
    with and in the same way as all of the other evidence. [Emphasis added.]

[49]

The appellant submits that the trial judge was
    wrong to instruct the jury as follows: If you decide that Mr. Reddick made a
    remark that may help him in his defence, you will consider that statement along
    with the rest of the evidence in deciding whether you have a reasonable doubt
    about his guilt. Instead, the jury should have been instructed that it was an
    undisputed fact that the appellant said, They jumped me.

[50]

This is an unimportant point. Earlier in her
    instructions, the trial judge told the jury that they were the sole judges of
    the facts. Given that the utterance did not form part of an agreed statement of
    facts or a formal admission under s. 655 of the
Criminal
    Code
, the jury was still required to find as a
    fact that the appellant made the utterance. They undoubtedly would have.

[51]

The appellant further submits that the trial
    judge should have instructed the jury more fully on the use to be made of the
    appellants utterance. I agree that the trial judge should have gone further
    and, in accordance with
Edgar
, instructed the jury that the utterance could not be used for the
    truth of its contents. Both parties, as well as the trial judge, seemed to
    treat the statement as being admissible for this purpose. This is most evident
    in the Crowns closing address. But this misapprehension inured to the
    appellants benefit. The appellant was permitted to corroborate his testimony
    about being jumped with his own statement, made moments after the fight, and
    the statement was left to be used for the truth of its contents. This latter
    use is what the court in
Edgar
sought to prevent.

[52]

The appellant further submits that the trial
    judge should have better explained how the statement related to his credibility
    as a witness and his claim of self-defence. I agree with the Crown that the
    relevance of the utterance to self-defence would have been obvious to the jury
     it was an assertion that he was just defending himself from attack.

[53]

The trial judge should have mentioned the
    utterance in the context of the appellants credibility, especially since his
    sincerity was challenged by the Crown in cross-examination. However, in his
    closing address, defence counsel relied on the spontaneous utterance in urging
    the appellants version of events on the jury. Acting on the mistaken assumption
    that the utterance was admissible for its truth, the Crown asked the jury to
    find that it was untrue and merely a less-detailed version of his trial
    testimony. In reviewing the appellants testimony, the trial judge referred to
    this statement. Neither defence counsel nor the Crown objected to the trial
    judges instruction on this issue.

[54]

In all of the circumstances, while the trial
    judges
Edgar
instruction was deficient in certain respects, the appellant was not
    prejudiced.

[55]

I would dismiss this ground of appeal.

F.

CONCLUSION

[56]

I would dismiss the appeal.

Released: June
    14, 2021 PL

Gary Trotter J.A.

I agree. P. Lauwers J.A.

I agree. B. Zarnett J.A.


