



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 648(1), and (2) of the
Criminal Code
shall
    continue. These sections of the
Criminal Code
provide:

648(1)
After permission to
    separate is given to members of a jury under subsection 647(1), no information
    regarding any portion of the trial at which the jury is not present shall be
    published in any document or broadcast or transmitted in any way before the
    jury retires to consider its verdict.

(2)
Every one who
    fails to comply with subsection (1) is guilty of an offence punishable on
    summary conviction.

(3)       [Repealed,
    2005, c. 32, s. 21]

R.S.,
    1985, c. C-46, s. 648;

2005, c. 32, s. 21.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brooks, 2018 ONCA 587

DATE: 20180627

DOCKET: C63270

Hourigan, Pardu and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Elon Brooks

Appellant

Dirk Derstine, for the appellant

David Finley, for the respondent

Heard: June 18, 2018

On appeal from the conviction entered on December 2, 2014,
    by Justice Kofi N. Barnes of the Superior Court of Justice, sitting with a
    jury.

REASONS FOR DECISION

Introduction

[1]

The appellant was convicted of first degree murder in relation to the
    stabbing death of Kevin Pham. He appeals his conviction, asserting three main grounds
    of appeal. First, the trial judge erred in instructing the jury that they could
    apply the co-conspirators exception to the hearsay rule to certain out-of-court
    statements. Second, the trial judge erred in the admission of Phams
ante
    mortem

statements, which the appellant submits were more
    prejudicial than probative. Third, the trial judge erred by including in the
    charge multiple alternate routes to liability, which the appellant argues
    lacked an evidentiary foundation and resulted in an overly complex charge.

[2]

For the reasons that follow, we allow the appeal, set aside the
    conviction, and order a new trial.

Facts

[3]

On December 28, 2011, Pham was stabbed in the stairwell of a Mississauga
    apartment building. He died as a result of his wounds. A jury convicted the
    appellant of first degree murder.

[4]

At trial, it was undisputed that the appellant, his cousin V.B. (who was
    a young person at the time of Phams death), his friend Murtaza Naqvi, and Pham
    were known to each other and at various times sold narcotics together. By
    December 2011, however, the relationship among them had deteriorated. Just days
    before Phams death, on December 23, the parties got into a confrontation at
    V.B.s familys apartment, wherein Pham punched the appellant in the face, then
    fled.

[5]

On the day of Phams death, the appellant, V.B., and Naqvi had another
    associate, Eyuael Taera, drive them to an apartment building where Pham was
    visiting with his friend, Hussein Tala. The trio entered the apartment through
    a back door, while Taera remained in the vehicle. They encountered Pham in the
    stairwell. Tala fled from the building, and moments later, the trio and Pham
    exited the building. The trio left the scene in Taeras vehicle. Pham collapsed
    in the parking lot and was pronounced dead at the hospital.

[6]

According to Naqvi, just prior to heading to Talas apartment, V.B.
    suggested that the trio should check Kevin.

[7]

According to Taera, on the drive to Talas apartment, V.B. asked, do we
    have everything? at which point Taera saw a knife in the appellants hand.
    V.B. said, how are we going to deal with this? and the appellant replied,
    just turn the music up. Im trying to get into the mood.

The Proceeding Below

[8]

The Crown filed written materials in relation to its pre-trial motions
    regarding certain hearsay statements. The Crown sought rulings on several
ante
    mortem

statements of Pham, as well as the above utterances of V.B.
    The Crowns materials and submissions contemplated admitting V.B.s statements
    through Naqvi and Taera, who were Crown witnesses, as part of the narrative. In
    a footnote, the Crown wrote that it intended to rely on the co-conspirators
    exception, but stated that this issue would have to be argued after the
    conclusion of the evidence at trial:

It is the Crowns position that any of the discussion by the
    trio (as relayed by the testimony of Taera and Naqvi) back at the Elm Street
    Apartment and in the car on the way to or from the murder is admissible not
    just as narrative but specifically admitted for substantive use against Elon
    Brooks regardless of which of the trio made the statement for two reasons: (1)
    Elon Brooks was present during these discussions and was a participant in them;
    and (2)
these are statements made in furtherance of a conspiracy and are
    admissible under the co-conspirators exception to the hearsay rule. However,
    these are issues that cannot be litigated until the evidence has been heard at
    trial once the Crown has established all the pre-conditions
. [Emphasis
    added.]

[9]

The issue of whether V.B.s hearsay statements could be used for the
    truth of their contents pursuant to the co-conspirators exception was not
    addressed during the pre-trial motions.

[10]

At
    trial, V.B.s statements were led through Naqvi and Taera without objection. At
    no point during the evidence phase of the trial did defence counsel request
    that V.B. testify, despite the fact that V.B. was under subpoena and was being
    regularly bound over.

[11]

The
    appellant testified and denied any plan to kill Pham. He said that he and his
    associates attended Talas apartment for unrelated reasons. According to the
    appellant, Pham lunged at him in the stairwell, prompting Naqvi to intervene
    with a knife. He testified that in the course of the altercation, Naqvi stabbed
    Pham.

[12]

After
    both parties finished calling their evidence, during the pre-charge conference,
    the Crown applied to have the following hearsay statements admitted for the
    truth of their contents pursuant to the co-conspirators hearsay exception:

·

Naqvis evidence that after Pham punched the appellant on
    December 23, either the appellant or V.B. said that Pham cant get away with
    that. He just comes and punches him and leaves;

·

Naqvis evidence that V.B. said the trio should check Kevin;

·

Taeras evidence that V.B. said, do we have everything we
    need?, at which point Taera saw a knife in the appellants hand; and

·

Taeras evidence that someone in the car gave him directions to
    Talas apartment, told him where to park, and said that they were going to
    enter through the back door.

[13]

Defence
    counsel objected to the admission of V.B.s hearsay statements for their truth,
    citing the lack of necessity, and pointing out that this use was never
    discussed during the pre-trial motions. Defence counsel claimed that she did
    not object to the Crown eliciting V.B.s statements through Naqvi and Taera
    because at that time, she understood that the statements were going in for
    narrative purposes only. The Crown referred to the footnote in its written
    materials on the unrelated pre-trial motions to argue that it had indeed
    indicated that it would be seeking to use V.B.s statements for their truth.

[14]

Counsel
    for the Crown and the defence proceeded to make substantive submissions on the
    availability of the co-conspirators exception. Crown counsel agreed that,
    pursuant to
R. v. Mapara
, 2005 SCC 23, [2005] 1 S.C.R. 358, and
R.
    v. Simpson
, 2007 ONCA 793, 231 O.A.C. 19, leave to appeal refused, [2008]
    S.C.C.A. No. 32, the co-conspirators exception may in rare cases yield to the
    requirements of necessity and reliability. However, the Crown submitted that
    the burden to show that the exception should yield was on the defence. The
    Crown argued if defence counsel was going to oppose the use of V.B.s
    statements for their truth on necessity grounds, she should have objected when
    the Crown was still in a position to call V.B.

[15]

Defence
    counsel maintained that the co-conspirators exception should yield to the
    necessity requirement in this case. She submitted that circumstances had
    changed between the preliminary inquiry and the trial concerning V.B.s
    willingness to cooperate as a Crown witness. Since the preliminary inquiry,
    V.B. had pleaded guilty to and been sentenced for manslaughter for his role in
    Phams death.

[16]

The
    Crown acknowledged that calling V.B. was a possibility open to it during the
    trial, but submitted that it was no longer open to it given that it had closed
    its case. The Crown also referenced its tactical reasons for not calling V.B.:

We dont normally call the cousin of the accused who was also
    convicted unless we absolutely have to and in this case, we didnt. We had
    other witnesses to this event and other witnesses who could  who were
    co-conspirators and who could talk about these statements that were made.

[17]

The
    trial judge released a written endorsement in relation to this issue, which
    read in its entirety:

The jury shall be charged on the (co-conspirators) common
    design hearsay exception. In this case it shall be called the Common Design
    Exception to the Hearsay Rule.

[18]

Accordingly,
    the jury was charged on the co-conspirators exception and instructed that
    V.B.s statements could be used for the truth of their contents if the legal
    requirements of the exception were met.

[19]

At
    the pre-charge conference, the Crown also sought instructions to the jury on
    six different routes to liability, contemplating not only that the appellant
    murdered Pham as principal, but also that he was a party to the killing and
    thus guilty of murder or manslaughter. Defence counsel objected to the
    inclusion of the routes to liability other than the appellant as principal on
    the bases that the Crown was changing its theory of the case, that the
    alternate routes lacked an evidentiary foundation, and that their inclusion
    would render the jury charge overly complex and confusing. Ultimately, in
    addition to the appellant as principal, the trial judge left to the jury routes
    to first degree murder, second degree murder, and manslaughter pursuant to s.
    21(1) (aiding and abetting), and routes to second degree murder and manslaughter
    pursuant to s. 21(2) (common intention).

Analysis

(a)

Hearsay

[20]

Despite
    detailed submissions on the issue, the trial judge did not provide reasons for
    why he was instructing the jury regarding the co-conspirators exception to the
    hearsay rule. In
R. v. Tsekouras
,
2017 ONCA 290, 353 C.C.C. (3d) 349, leave to appeal refused, [2017] S.C.C.A.
    No. 225, Watt J.A. summarized the law regarding the failure of a trial judge to
    provide reasons for an evidentiary ruling at para. 156:

The robust body of jurisprudence about the duty
    of trial judges to provide reasons for recording convictions and the scope of
    appellate review of those reasons for sufficiency does not apply in the same
    way to evidentiary rulings. Subject to a duty of procedural fairness, there is
    no general duty to provide reasons for an evidentiary ruling. The failure to
    give reasons on an evidentiary ruling is not fatal provided that the decision
    is supportable on the evidence or the basis for the decision is apparent from
    the circumstances. The importance of the subject-matter of the ruling also has
    a bearing on whether procedural fairness compels reasons: See,
R. v. Woodard
,
    2009 MBCA 42
,
245
    C.C.C. (3d) 522
, at paras. 22
, 24-25.

[21]

In the case at bar, the admission of the hearsay was a critical part of
    the Crowns case. V.B.s hearsay statements were the only evidence of planning
    and deliberation to lead to a first degree murder verdict. The appellant has a
    right to understand the basis for the admission of the evidence. In our view,
    as a matter of fairness, the trial judge was obliged to provide reasons.

[22]

The Crown submits that implicit in the endorsement and the instruction was
    a finding that the appellants objection was made too late. It is the Crowns
    position that the appellant had the onus to object to the hearsay use in a
    timely manner and that objecting after the Crown closed its case rendered the
    objection too late. It argues that it was left in a position where if the
    hearsay was not admitted, it would not have been in a position to call V.B.

[23]

In this case, where the Crown provided an ambiguous notice of its intention
    to rely on the hearsay for its truth, which notice included a reference to
    litigating the admissibility at the conclusion of the evidence, the Crown had
    an obligation to argue the admissibility of the evidence before the conclusion
    of its case if it wished to keep open the possibility of calling V.B. to give
    evidence, in the event the defence was able to persuade the trial judge that
    the lack of necessity foreclosed reliance on the exception to the hearsay rule.
    It was clear that there was a live issue regarding necessity, given that V.B.
    was available to testify: see
Simpson
, at para. 36. The defence was
    not objecting to the admission of the evidence, but to the proposed instruction
    to be given to the jury of the use it could make of the evidence. The timing of
    the defence argument, raised at the hearing contemplated by both Crown and
    defence to deal with the issue of the hearsay evidence, after all of the
    evidence was heard, was not a basis to reject the defence submission.

[24]

We are also not satisfied that the instruction is supportable on the
    record. There was little evidence that V.B. would have been an uncooperative
    witness. While he had refused to testify at the preliminary hearing when he was
    facing charges related to Phams death, he subsequently pleaded guilty to manslaughter.
    As part of his guilty plea, V.B. adopted facts under oath that included the
    utterances the Crown wished to adduce for their truth at the appellants trial.
    Moreover, as noted above, in submissions to the trial judge the Crown conceded
    that calling V.B. as a witness was a possibility that was open to us, but
    that the Crown preferred not to call him for tactical reasons only.

[25]

In summary, the decision to instruct the jury on the co-conspirators
    exception to the hearsay rule is not supportable on the record nor is the basis
    for the decision apparent from the circumstances. Given the centrality of the
    hearsay evidence to the Crowns case and the fact that the trial judge provided
    no reasons for giving the instruction, a new trial must be ordered.

(b)

Other Grounds of
    Appeal

[26]

As a result of our disposition on the hearsay issue, it is unnecessary
    for us to consider the other grounds of appeal. However, we caution that nothing
    in these reasons should be considered as an endorsement of the trial judges jury
    charge regarding routes to liability. We would encourage the judge hearing the
    retrial of this case, with the assistance of counsel, to focus his or her jury
    charge on routes to liability that have a firm evidentiary footing and add
    realistic routes to culpability not covered by other bases.

Disposition

[27]

The
    appeal is allowed, the conviction for first degree murder is set aside, and a
    new trial is ordered.

C.W.
    Hourigan J.A

G.
    Pardu J.A.

I.V.B.
    Nordheimer J.A.


