



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mullin, 2019 ONCA 890

DATE: 20191112

DOCKET: C60646

Strathy C.J.O., Doherty and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kenneth Mullin

Appellant

Paul J.I. Alexander, for the appellant

Deborah Krick, for the respondent

Heard: October 3, 2019

On appeal from the conviction entered by Justice R. Cary
    Boswell of the Superior Court of Justice, sitting with a jury, on November 2,
    2011.

Strathy C.J.O.:

[1]

The appellant was convicted of second-degree murder relating to the
    death of his common-law wife. He was sentenced to life imprisonment, with 12
    years parole ineligibility. He appeals his conviction.

I.

FACTUAL BACKGROUND

[2]

Sherry Martin died on the floor of the home she shared with the
    appellant, from a single stab wound to her chest. Forensic evidence established
    that significant force was required to inflict the fatal wound. The appellant
    admitted that he was the only other person present in the house at the time and
    claimed that Ms. Martin committed suicide. The Crown contended that he had
    stabbed her in the middle of a violent argument.

[3]

Critical trial evidence was provided by Ms. Martins friend, Jennifer
    Brent, who testified that she was on the phone with Ms. Martin when she overheard
    a loud argument between Ms. Martin and the appellant. She heard Ms. Martin
    shout something like, take your fucking hands off of me. She heard a scream
    and the phone line went dead. After attempting to call back several times, she
    eventually reached the appellant, who said that he had knocked [Ms. Martin] out,
    and that she couldnt talk right now.

[4]

Alarmed for the safety of her friend, Ms. Brent called 911. The call was
    recorded. In an hysterical and breathless voice, speaking so quickly the
    operator could scarcely understand her, Ms. Brent said that she had heard
    screaming and that the appellant had said that he had knocked her out. The
    trial judge ruled that portions of the call could be played to the jury. The
    appellant challenges that ruling.

[5]

When police arrived at the home as a result of the 911 call, the
    appellant walked out of the front door of the house and toward the officer and
    said, Youre here to arrest me, arrest me. He then turned away from the
    officer, put his hands behind his back, and again said, Arrest me. The trial
    judge ruled that this and other aspects of Mr. Mullins post-offence conduct
    could be considered by the jury as circumstantial evidence of his guilt. The
    appellant challenges the trial judges jury instruction on the proper use of
    the evidence.

[6]

The appellant was placed in a police cruiser. He was informed of his
    right to counsel and was cautioned. He said, I think I killed her and I
    dont need a lawyer, I got nothing anyways, it doesnt matter. He was taken to
    the police station where he gave a videotaped statement, in which he stated
    that he had stabbed the deceased and was guilty as charged. At trial, he
    claimed that he was suicidal when he gave the statement and that it was false. He
    said that he attempted to hang himself after Ms. Martin died and before police
    arrived because he was overcome with grief at the death of his spouse.

[7]

The appellant raises four grounds of appeal. I will address each in
    order, setting out the parties submissions and, where necessary, additional
    evidence to put the issue in context.

II.

ANALYSIS

A.

Failure
    to answer a jury question

[8]

The first ground of appeal was withdrawn at the hearing. As it has some
    significance in relation to the fourth ground, I will briefly explain the issue
    and its resolution.

[9]

The appellant asserted that the trial judge failed to answer a question
    from the jury within a reasonable time. The question concerned the mental state
    for murder. The trial transcript indicated that there was a delay of more than eight
    hours between the receipt of the jurys question and the judges response.

[10]

The Crown applied to adduce fresh evidence, which established that the
    time references in the trial transcript were incorrect and that the question
    was, in fact, answered in a timely manner. On receipt of the question, the
    trial judge discussed the issue with counsel, and it was agreed that the jury
    should be recalled and asked to clarify their question. This was done. About
    forty minutes later, the jury sent a note to the trial judge to the effect that
    they had resolved the concern raised by the question. An hour and a half later,
    the jury delivered a verdict.

[11]

The appellant did not challenge the introduction of the fresh evidence
    and conceded that it answered the first ground of appeal.

[12]

I would therefore admit the fresh evidence and would give no effect to
    the first ground.

B.

Bad
    character evidence

[13]

The appellant claims that the trial judge erred in admitting evidence of
    his bad character during the Crowns cross-examination of the appellant and
    in failing to properly instruct the jury on its use.

[14]

The Crown argued that the appellant had put his character in issue and
    sought to cross-examine him concerning the fact that, seven years earlier, he
    had pleaded guilty to a charge of uttering a threat against Ms. Martin. In the
    course of an argument, the appellant had said to her, You are so dead. He
    received a conditional discharge. The motion to introduce this evidence was
    brought near the end of the Crowns case, before the appellant had chosen to
    testify.

[15]

The Crown had adduced the evidence of three witnesses who knew the
    appellant. Two had worked with the appellant and the third was Ms. Brent. The
    appellants co-workers, who had been with him at a bar on the day of the
    offence, testified that although he was drinking, he appeared to be acting
    normally. One testified that the appellant said that Ms. Martin had cut off his
    cell phone and that he could just strangle her for doing this. The other
    testified about a heated argument between the appellant and Ms. Martin on an
    earlier occasion when Ms. Martin had made a scene because the appellant had
    been looking at a woman at the bar.

[16]

On cross-examination of these witnesses, the defence elicited evidence
    that the appellant was a quiet and polite person, that they had never seen him
    act aggressively, that he appeared to love Ms. Martin, and that his behaviour
    had not changed in the time leading up to the incident.

[17]

In its examination of Ms. Brent, the Crown adduced evidence that the
    couple had argued, mostly about money, yelling and swearing at each other. Ms.
    Brent testified that she had never seen the appellant touch Ms. Martin other
    than in an affectionate way.

[18]

In cross-examination, the following exchange occurred between the
    defence counsel and Ms. Brent:

Q. And even after you found out that Ms.
    Martin had passed away, you wouldnt have thought in a million years that Mr.
    Mullin would do anything to her to kill her?

A. Yes.

Q. Agreed?

A. Yes.

Q. And thats based on all the time you spent
    with Mr. Mullin and Ms. Martin over those eight or so years, right?

A. Yes.



Q. Okay; and even after you went to the police
    on February 28th, 2009, you still didnt believe that hed do this in a million
    years, isnt that right?

A. Yes.

[19]

In his ruling admitting the Crowns bad character evidence, the trial
    judge observed,

the combined effect of the cross-examinations of Mr. Rogers,
    Mr. Baker and Ms. Brent, is to paint a picture of Mr. Mullin as a quiet,
    respectful, non-aggressive person, who would not be expected to commit an
    assault or to do anything to harm Ms. Martin. This is more than evidence of the
    demeanour or state of mind of the accused in the hours prior to the alleged
    offence. This is evidence of his character generally  of his quiet and passive
    nature.

[20]

The trial judge found that the appellant had put his character in issue
    and that the Crown was entitled to adduce evidence to neutralize the effect
    of the evidence of good character adduced by the defence. He found that the
    evidence relating to the conditional discharge was probative of the appellants
    character and was also admissible to impeach his credibility. While the
    threatening charge was seven years before Ms. Martins death, some of the good
    character evidence was also dated. Any potential prejudice could be addressed
    through a jury instruction.

[21]

The trial judge held, however, that the Crown was not entitled to use
    the conditional discharge as evidence of
animus
or motive, in addition
    to rebutting the evidence of good character. No application had been brought to
    do so, and it would be unfair to permit the Crown to do so at that late stage
    of the trial. The trial judge also held that the Crowns cross-examination of
    the appellant should be strictly limited to the charge of threatening, the
    guilty plea, and the facts supporting the charge.

[22]

The appellant makes three submissions with respect to this ground: (1) that
    he did not put his character in issue; (2) that if his character was in issue,
    the evidence should nevertheless have been excluded because it was unduly
    prejudicial; and (3) that if the evidence was properly admitted, the judges
    instructions to the jury were insufficient.

(1)

Did the appellant put
    his character in issue?

[23]

As a general rule, the Crown may not introduce evidence of the accuseds
    bad character to establish that, as a result of that character, he or she is
    more likely to have committed the offence. In certain cases, however, the Crown
    is entitled to lead evidence of a marital relationship to provide a proper
    context in which the jury can assess the specific allegations made against an
    accused. In these cases, an accused is entitled to rebut the Crowns case by
    presenting their own version of that context without necessarily putting their
    character in issue:
R. v. P. (N.A.)
(2002), 171 C.C.C. (3d) 70 (Ont.
    C.A.), at para. 34. However, where an accused oversteps and adduces evidence in
    support of the inference that they are less likely to have committed the
    offence and to support their own credibility, they put their character in issue
    and open the door for the Crown to adduce bad character evidence to rebut the
    effect of their good character evidence. Here, the appellant says that the
    good character evidence was simply tendered in response to the Crowns case
    that he was a frustrated and angry spouse who had snapped after years of
    being trapped in an unhappy relationship. I disagree.

[24]

The trial judge did not err in concluding that the evidence went beyond
    the appellants demeanour and state of mind in the hours before the alleged offence.
    The evidence,
particularly Ms. Brents testimony that she
    wouldnt have thought in a million years that Mr. Mullin would do anything to [Ms.
    Martin] to kill her
, was pure good character evidence and the Crown was
    entitled to adduce evidence to refute it. The question, then, is whether the
    trial judge properly balanced the probative value against the prejudicial
    effect of the conditional discharge evidence and took appropriate steps to
    mitigate any prejudice.

(2)

Was the evidence
    unduly prejudicial?

[25]

The appellant argues that the bad character evidence was highly
    prejudicial because it was evidence that he had previously pleaded guilty to
    threatening to commit the very offence for which he was being tried.

[26]

The trial judge was alive to this issue and came to a reasonable
    conclusion after undertaking a balancing of the probative value and prejudicial
    effect. He considered the appellants argument that the conditional discharge
    was dated, thereby reducing its probative value. He noted that the good
    character evidence was itself dated. He also observed that the evidence the
    Crown wished to adduce was prejudicial, because there was a risk that the jury
    could conclude that, because the appellant had threatened to kill Ms. Martin in
    2002, he was more likely to have killed her in 2009. His overall conclusion was
    that the prejudicial effect of the conditional discharge evidence could be
    addressed: (1) by prohibiting the evidence from being adduced as evidence of
    motive or
animus
; (2) by strictly confining the scope of the evidence
    to be adduced; and (3) by giving the jury a cautionary instruction.

[27]

The trial judges balancing of the prejudicial effect of the evidence
    against its probative value is entitled to deference:
R. v. Ansari
,
    2015 ONCA 575, 330 C.C.C. (3d) 105, at para. 112, leave to appeal refused,
    [2015] S.C.C.A. No. 487.

(3)

Was the jury properly
    instructed?

[28]

The appellant submits that, having decided to admit the bad character
    evidence, the trial judge failed to expressly instruct the jury that they could
    not use it as evidence of
animus
or motive. The trial judge noted this
    concern in his ruling on the admissibility of the evidence, but the appellant
    says that he failed to inoculate the jury against the prohibited use: see
R.
    v. B. (F.F.)
, [1993] 1 S.C.R. 697, at pp. 733-34;
R. v. J.A.T.
, 2012
    ONCA 177, 288 C.C.C. (3d) 1, at para. 50.

[29]

In instructing the jury on this issue, the trial judge reviewed the
    evidence of good character, noting that it might make it less likely that the
    appellant committed the offence and that it might support his credibility. He
    also explained the meaning of a conditional discharge and reviewed the evidence
    concerning the appellants conditional discharge. He concluded:

You may consider the evidence of the guilty plea to the
    threatening charge
only
in deciding whether you
    will believe and rely upon the evidence that Mr. Mullin has a good character
    for being a quiet, respectful and non-aggressive person. You must not use this
    evidence, alone or with any other evidence, to conclude or to help you conclude
    that Mr. Mullin committed the offence charged because he is a person of bad
    character, or the sort of person who would likely do so. [Emphasis added.]

[30]

In the particular circumstances of this case, this instruction was
    adequate to instruct the jury about the permissible use of the evidence and to
    caution them against the use of the evidence for any other purpose. There was
    no objection to this instruction. Nor was there a request for any further
    instruction.

[31]

Neither the Crown nor the defence made reference to either the good
    character evidence or the bad character evidence in their final jury addresses.
    In the context of all the evidence, the guilty plea was a very small part of
    the case against the appellant and I see no risk, in light of the instructions,
    that the jury would use it for an improper purpose.

C.

Admission
    of 911 call

[32]

Near the end of Ms. Brents cross-examination by defence counsel, the
    Crown sought to introduce the tape of her 911 call to the police in
    re-examination.

[33]

In so doing, the Crown sought to introduce Ms. Brents utterances for
    the truth of their contents.

[34]

The judge ruled that the call was admissible. He noted that Ms. Brents
    utterances were hearsay and presumptively inadmissible, notwithstanding that
    she was available to be cross-examined at trial. However, the trial judge
    accepted the Crowns submission that the 911 call was admissible as
res
    gestae
, a traditional exception to the hearsay rule. The call was made at
    a time when Ms. Brent was in a frantic state of extreme emotion and the risk of
    concoction or deception in relation to the content of the call could be
    discounted.

[35]

The judge said that the more significant issue was whether the evidence
    could be adduced in re-examination of the witness. He found:

I am satisfied that the Crown ought to be entitled, in
    re-examination, to adduce evidence responding to matters raised in
    cross-examination, in particular, in response to the allegation that she made
    up evidence about Mr. Mullin saying that he had punched, hit or knocked out Ms.
    Martin, that she had heard Ms. Martin scream, and that Ms. Martin was quiet and
    could not talk.

The 911 call includes comments Ms. Brent made to the 911
    operator to the effect that Mr. Mullin knocked out Ms. Martin, that she heard a
    scream and that Mr. Mullin said Ms. Martin was quiet and couldnt talk because
    hed punched her in the head. To this end, they are responsive to the
    suggestion that Ms. Brent made up the comments she attributed to Mr. Mullin.
    They not only rebut any suggestion of
recent
fabrication, but the 911
    call is evidence the jury could use to conclude that in fact Mr. Mullin
did
make the statements attributed to him during the 911 call. [Emphasis in
    original.]

[36]

The judge concluded, however, that only portions of the call should be
    admitted in evidence  namely those portions of the call that related to
    matters raised in cross-examination. The Crown would be permitted to play two
    very small portions of the recording, one to put the call into context and the
    other to respond to the allegation of fabrication. The defence would be
    permitted to cross-examine Ms. Brent concerning what she had said in the 911
    recording.

[37]

The trial judge therefore allowed the Crown to adduce the evidence and
    permitted the defence to continue its cross-examination to address the new
    evidence. As matters developed, the defence introduced the limited portions of
    the 911 call in its continued cross-examination of Ms. Brent. The Crowns
    re-examination was limited to simply asking Ms. Brent whether she recognized
    her voice on the recording and whether the recording was accurate. She replied
    affirmatively to both questions.

[38]

The appellant makes three submissions on this issue: (1) that the
    evidence was not admissible under the
res gestae
exception; (2) that
    it should not have been admitted in re-examination; and (3) that it was not
    admissible to corroborate Ms. Brents in-court testimony because it was
    oath-helping.

[39]

I would not give effect to this ground of appeal.

(1)

The
res gestae

[40]

If used for the truth of the declarants (Ms. Brents) statements made
    during the call, the 911 recording was hearsay. It was an out of court
    statement being admitted for the purpose of establishing that the appellant had
    said, among other things, that he had knocked [Ms. Martin] out.

[41]

The law permits the introduction of excited or spontaneous utterances as
    an exception to the rule against hearsay: a statement relating to a startling
    event or condition  may be admitted to prove the truth of its contents if it
    is made while the declarant is under the stress of excitement cause by the
    event or condition: David M. Paciocco & Lee Stuesser,
The Law of
    Evidence
, 7th ed. (Toronto: Irwin Law, 2015), at p. 191. In order for a
    statement to be admissible, [t]he stress or pressure of the act or event must
    be such that the possibility of concoction or deception can be safely
    discounted. The statement need not be made strictly contemporaneous to the
    occurrence so long as the stress or pressure created by it is ongoing and the
    statement is made before there has been time to contrive and misrepresent:
R.
    v. Khan
(1988), 42 C.C.C. (3d) 197 (Ont. C.A.), at p. 207, affd [1990] 2
    S.C.R. 531;
R. v. Nurse
, 2019 ONCA 260, at paras. 77-82;
Ratten v.
    The Queen
, [1972] A.C. 378 (P.C.).

[42]

Here, the threshold for admissibility as
res gestae
was met as
    the 911 call was made soon after Ms. Brents conversation with the appellant,
    while the stress of the event was ongoing: see e.g.,
R. v. Nicholas
(2004), 182 C.C.C. (3d) 393 (Ont. C.A.), at paras. 89-92, leave to appeal
    refused, [2004] S.C.C.A. No. 225. This was evident in the declarants voice and
    conduct on the call, in which she was highly excited and anxious to get medical
    assistance for her friend. These circumstances enhanced the reliability of the
    evidence. The hearsay dangers were also significantly reduced because the
    declarant was in the witness box, the recorded call was being played to her,
    and she could be cross-examined concerning what she had said.

(2)

Re-examination

[43]

Ultimately, however, the Crowns request to play the 911 call during Ms.
    Brents re-examination was not to establish the truth of what she said during
    the call, but to respond to the defence allegation that she had fabricated her
    evidence about what the appellant had said during the call. The Crown argued
    that the timing of the 911 call in relation to Ms. Brents conversation with
    the appellant and her obvious emotional distress could be used by the jury to
    conclude that what she said on the 911 call was not concocted and that,
    inferentially, her subsequent statements to the same effect were also not
    concocted. Therefore, while the trial judge admitted the 911 call for the truth
    of its contents (as evidence the jury could use to conclude that the appellant
    did make the statements attributed to him during the 911 call), it was never
    actually put to this use by the Crown. The Crown sought only to use it for the
    purpose of rebutting the allegation of fabrication.

[44]

In my view, the trial judge did not err in the exercise of his
    discretion in permitting the Crown to adduce the evidence in re-examination,
    because the defence had alleged that the witness had fabricated her testimony. The
    defence cross-examination impugned Ms. Brents credibility and while the 911
    call may have been admissible in direct examination, it was certainly
    admissible in response to the assertion that her testimony had been fabricated.
    The trial judge was entitled to conclude that, in assessing the credibility of
    this important witness, the jury should hear what she had said immediately
    following the events in question. Any potential prejudice was addressed by
    giving the defence the opportunity to cross-examine Ms. Brent concerning the
    911 call.

(3)

Oath-helping

[45]

There is no absolute prohibition on oath-helping. Evidence that might
    otherwise be described as oath-helping can be used to rebut an allegation of
    recent fabrication or to rehabilitate a witness whose evidence has been
    impeached, provided it is confined to that purpose and is not used more broadly
    to bolster the witnesss overall credibility:
R. v. Tash
, 2013 ONCA
    380, 306 O.A.C. 173, at paras. 39, 42-43;
R. v. Santhosh
, 2016 ONCA
    731, 342 C.C.C. (3d) 41, at paras. 37-38.

[46]

The trial judges ruling was fair and balanced and confined the use of
    the evidence to what was strictly necessary to refute the complaint of
    fabrication and to minimize any prejudice to the appellant. The jury considered
    the 911 call in the context of Ms. Brents prior inconsistent statements and
    not as an independent piece of evidence admitted as part of the
res gestae
.
    Nowhere in the judges charge was the jury instructed to consider the 911 call
    as part of the
res gestae
and for the truth of its contents.

D.

Post-offence
    conduct

[47]

The fourth and final ground of appeal is that the trial judge
    misdirected the jury on the use of the post-offence conduct evidence: the
    appellants failure to call 911 and his putting his hands behind his back and
    saying, Arrest me when police arrived at the home.

[48]

Evidence of after-the-fact conduct is circumstantial evidence that may
    be received if it is relevant, material, not contrary to any applicable
    admissibility rule, and if its probative value exceeds its prejudicial effect:
    see
R. v. Adan
, 2019 ONCA 709, at paras. 64-70. Here, the evidence was
    tendered as circumstantial evidence of the appellants culpability. While he
    does not challenge the admissibility of the evidence, the appellant submits
    that the trial judge failed to properly instruct the jury on its use.

[49]

The judges instruction included the following:

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

On the other hand, if you find that what Kenneth Mullin did or
    said afterwards was because he was conscious of having done what is alleged
    against him, then you may consider this evidence, together with all the other
    evidence, in reaching your verdict.

[50]

The appellants submission is that this was the same form of instruction
    that was found to be problematic in
R. v. Hall
, 2010 ONCA 724, 263
    C.C.C. (3d) 5, at paras. 140-146, leave to appeal refused, [2010] S.C.C.A. No.
    499. In
Hall
, it was held that the language invited the jury to
    engage in the tautological reasoning that the Supreme Court disapproved of in
White
,
    namely, requiring them to determine whether the appellant was conscious that he
    committed the offence before they could use the post-offence conduct evidence
    to decide if he committed the offence: at para. 142;
R. v. White
,
    [1998] 2 S.C.R. 72. The instruction invited the jury to jump directly to the
    issue of guilt as a precondition to deciding the use they would make of the
    post-offence conduct evidence:
Hall
, at para. 143.

[51]

As in
Hall
, the trial judge in this case gave the jury the warnings
    and cautions required by
White
. First, he told the jury that if they
    found that the appellant did or failed to do the acts in question, they should
    not immediately conclude that he did or failed to do so because he was
    conscious of having committed the offence charged. Second, he told the jury
    that in determining the reasons for the appellants action or inaction, they
    should consider all the evidence, particularly evidence that offered another
    explanation for his conduct. Finally, he told the jury that they were not to
    use the evidence to decide that he committed the offence, unless they rejected
    any innocent explanation for it. The judge also reviewed the appellants
    explanations for the conduct in question: see
Hall
, at para. 140.

[52]

In
Hall
, this court observed that, taken alone, the flaw in the
    charge, to which trial counsel took no objection, would not have constituted
    reversible error. In that case, however, there were other deficiencies in the
    charge on post-offence conduct which, taken together, amounted to legal error: at
    para. 146.

[53]

Here, there are no other errors in the charge, and trial counsel made no
    objection to this aspect of the charge. Counsel for the appellant admitted
    that, as in
Hall
, this error would not amount to reversible error on
    its own. In his factum, however, the appellant submitted that, given the
    failure of the trial judge to answer the jurys question as to the mental state
    for murder, there was a risk that the error in the post-offence conduct issue
    tainted the verdict. As the former ground of appeal has been abandoned, I am of
    the view that the alleged error did not amount to a legal error.

III.

Disposition

[54]

For these reasons, I would dismiss the appeal.

Released: GS  NOV 12 2019

G.R. Strathy C.J.O.

I agree. Doherty J.A.

I agree. M. Tulloch J.A.


