R. v. Roulette (K.T.), 2015 MBCA 9

Citation: R. v. Roulette (K.T.), 2015 MBCA 9 Date: 20150126 Docket: AR13-30-08071 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin BETWEEN : HER MAJESTY THE QUEEN ) G. G. Brodsky, Q.C. ) for the Appellant ) Respondent ) D. L. Carlson and ) A. Y. Kotler - and - ) for the Respondent ) KENNETH TOBY ROULETTE ) Appeal heard: ) October 15, 2014 ) (Accused) Appellant ) Judgment delivered: ) January 26, 2015 MacINNES J.A. [ 1 ] The accused appeals his conviction on two counts of first degree murder. [ 2 ] He raises a number of issues on appeal.

These include alleged infringement of his ss. 7 and 11 Charter rights related to delayed disclosure (see the Canadian Charter of Rights and Freedoms (the Charter )), and the failure of the judge to order a stay of proceedings under s. 24(1) of the Charter by reason of the alleged infringement; the admission of preliminary inquiry testimony from a deceased witness; the instruction to jurors that they could not draw an adverse inference from the Crown’s failure to call certain witnesses, thus reversing the burden of proof onto the accused; the admission of prejudicial evidence against the accused; and the Crown’s failure to call or produce certain witnesses at trial. [ 3 ] As will be seen from the reasons that follow, I am not persuaded that the judge erred in respect of any of the issues, and accordingly, I would dismiss the accused’s appeal.

Facts [ 4 ] On January 31, 2009, Jesse Henderson (Henderson) and Dennis Baptiste (Baptiste) were found beaten and stabbed to death in Baptiste’s suite at 729 Maryland Street in Winnipeg. [ 5 ] Approximately one year later, two individuals, Russell Glow (Glow) and Philip Asham (Asham), separately contacted the police with information pertaining to the killings.

At the time Glow and Asham did so, they were each in custody on unrelated charges and provided the information in the hope that, in exchange, the charges against them would be dropped. [ 6 ] In fact, Glow entered into, and testified under, an immunity agreement.

The charges outstanding against him were stayed and he received some compensation from the government for witness protection expenses. [ 7 ] As regards Asham, no immunity agreement was executed, but the charges against him were stayed (although he disputes that that occurred in exchange for his evidence). [ 8 ] Following receipt of information from Glow and Asham, the accused was arrested on March 3, 2010, and charged with first degree murder in respect of the deaths of Henderson and Baptiste. In the course of the trial, forensic evidence was introduced which linked the accused to the murders in several ways.

As well, there was evidence that the accused made statements to each of Glow and Asham in which he admitted killing the two. He told Glow that he was starting a business of murder for hire, that these were his “first job” and that if Glow, or anyone Glow knew, needed such work done, he was available. The accused telephoned Asham shortly

after the killings and told Asham that he had just “murked” i.e., murdered, two guys. [ 9 ] There was also evidence from other witnesses at trial whose testimony was consistent in various respects with the evidence of Glow and/or Asham regarding material facts pertaining to the murders. [ 10 ] By reason of the criminal records and lifestyles of Glow and Asham, they were treated as Vetrovec witnesses. Thus, instructions were given by the judge to the jury to consider the evidence of each with skepticism and concern, as it would be dangerous to rely upon their evidence.

The jury was instructed to look to other evidence which could corroborate or confirm the evidence of each of Glow and Asham, so as to give the jury some comfort in relying upon their evidence should it choose to do so. [ 11 ] The accused alleges incomplete and late disclosure of relevant information from the Crown concerning the Crown’s case and of undue delay in bringing the matter to trial. Ultimately, the accused moved to have the charges stayed by reason of the imperfect disclosure and the delay.

Although the judge agreed that there had been some delay attributable to the Crown, he dismissed the accused’s application for a judicial stay. [ 12 ] As well, while Glow testified at the accused’s preliminary inquiry, he died prior to trial. The Crown sought admission of Glow’s preliminary inquiry evidence at trial, a motion the accused opposed.

After consideration, the judge admitted the evidence, but gave the jury a series of warnings about its potential shortcomings. [ 13 ] The jury, following completion of the evidence, the submissions of counsel and the judge’s charge to the jury, and after deliberation, convicted the accused of both counts. Grounds of Appeal [ 14 ] The accused asks that this court set aside the conviction in respect of both counts and order a new trial. He raises eight issues, which can be condensed to five, for consideration on the appeal, namely: 1. Did the judge err in failing to find a breach of Charter ss. 7 and/or 11(

b) on the basis of delayed or incomplete disclosure, and in failing to order a stay of proceedings under Charter s. 24(1) as a result? 2. Did the judge err in admitting the preliminary inquiry testimony of Glow? 3. Did the judge err in instructing the jurors that they could not draw an adverse inference from the Crown’s failure to call certain witnesses and did that instruction reverse the burden of proof? 4. Did the judge err by allowing the introduction of evidence that the accused had been in custody, had the number “187” tattooed on his arm and was involved in drug trafficking? 5.

Did the Crown act “contrary to law” by not producing certain witnesses at the trial? Standard of Review [ 15 ] The accused argues that the issues on appeal raise questions of law and thus, the standard of review with respect to each is that of correctness. [ 16 ] The Crown asserts that, with respect to issue number one, the standard of review is one of significant deference. It submits that, to the extent the accused’s arguments are based on Charter breaches, he must demonstrate an error of law or that the judge’s finding was unreasonable.

The Crown says that a judge’s decision, balancing prejudice to the accused with society’s interest in having a trial on the merits, is one entitled to significant deference. See R. v. Byron (M.C.) , 2001 MBCA 81 at para. 10 , 156 Man.R. (2d) 154 ; and R. v.

Evans (E.D.) , 2014 MBCA 44 at para. 3 , 306 Man.R. (2d) 9 . [ 17 ] As well, the Crown argues that, to the extent the accused seeks a stay of proceedings based on abuse of process, appellate intervention is warranted only where a judge misdirects him or herself in law, commits a reviewable error of fact, or renders a decision that is so clearly wrong as to amount to an injustice. See R. v.

Babos , 2014 SCC 16 at para. 48 , [2014] 1 S.C.R. 309 . [ 18 ] As to issue number two, the Crown argues that both the application of s. 715(1) of the Criminal Code (the Code ), and the decision whether to admit hearsay evidence for its truth, are issues within the discretion of the judge.

Absent an error in principle, the decisions are entitled to deference. [ 19 ] The Crown agrees with the accused that the third and fifth issues on appeal raise a question of law for which the standard of review is correctness. [ 20 ] The Crown submits that the fourth issue on appeal involves the balancing by the judge of probative value and prejudicial effect in the circumstances of the particular case.

Being an exercise of discretion by the judge, the standard of review is highly deferential. [ 21 ] In my view, the Crown’s position (and that of the accused regarding issues three and five) is correct as regards the standard of review pertaining to each of the issues on appeal. [ 22 ] I turn then to consider the issues on appeal. 1. Did the judge err in failing to find a breach of Charter ss. 7 and/or 11(

b) on the basis of delayed or incomplete disclosure, and in failing to order a stay of proceedings under Charter s. 24(1) as a result? [ 23 ] The accused asserts that the Crown’s delay in providing disclosure, and the incompleteness of the disclosure, deprived

him of the ability to make full answer and defence to the charges. This delay, he says, was contrary to the principles of fundamental justice and contributed to the trial not being conducted within a reasonable time in breach of his rights under ss. 7 and 11(

b) of the Charter .

In the result, the accused submits that a judicial stay of proceedings ought to have been entered under s. 24(1) of the Charter . [ 24 ] Alternatively, the accused submits that the preliminary inquiry evidence of Glow ought to have been excluded at trial. [ 25 ] The accused argues that implicit within the foregoing arguments are concerns traditionally raised under the common law doctrine of abuse of process and says that there is no distinction at law between the common law doctrine of abuse of process and Charter requirements regarding abusive conduct. [ 26 ] The accused refers to Babos , wherein the court said that there are two categories of state conduct that warrant a stay of proceedings; namely, the “main category,” being conduct affecting the fairness of an accused’s trial, and the “residual category,” being conduct that risks undermining the integrity of the judicial process. [ 27 ] The accused refers to the three-step test enunciated in Babos for determining whether a stay of proceedings is warranted; namely (at para. 32): …. (1) … [P]rejudice to the accused’s right to a fair trial or to the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” …; (2) … [N]o alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted … the court is required to balance [an accused’s] interests in favour of granting a stay … against “the interest that society has in having a final decision on the merits” ….

The accused argues that both the main and the residual categories are engaged in this case. [ 28 ] The accused submits that, on a balance of probabilities, he has been prejudiced in, or has suffered an adverse effect on, his ability to make full answer and defence by the delayed and incomplete disclosure. [ 29 ] This deficient disclosure, says the accused, impaired his ability to effectively challenge on cross-examination the witness Glow, and other witnesses, at the preliminary inquiry.

He argues that because Glow died after the preliminary inquiry and before trial, he was never able to fully and effectively cross-examine him, notwithstanding subsequent disclosure by the Crown of material which it had in its possession but had not disclosed prior to the preliminary inquiry. [ 30 ] The prejudice, says the accused, was so severe that the only remedy was either a stay of proceedings or the refusal of the judge to admit Glow’s preliminary inquiry evidence at the trial. [ 31 ] As well, the accused submits that although the judge found that the Crown was responsible for significant delay and held that the delay, in particular, the late disclosure, was conduct “for which the Crown should not be proud” (at para. 83), he erred in not appropriately considering step two of the test by failing to turn his mind in any meaningful way to the consideration of an “alternative remedy capable of redressing the prejudice.” [ 32 ] The Crown argues that the accused’s assertion that his s. 11(

b) right to trial within a reasonable time had been infringed is premised principally upon the argument that, with proper and timely disclosure, the preliminary inquiry could have been scheduled earlier. [ 33 ] This argument, says the Crown, was accepted by the judge, who found that there had been four months of excessive delay in the period leading up to the scheduling of the preliminary inquiry and that the Crown was responsible for three of those four months.

Notwithstanding, he concluded that, given the serious nature of the charges and the societal interest in criminal prosecutions being decided on their merits, the delays did not warrant the remedy of a stay of proceedings.

His decision, submits the Crown, is entitled to considerable deference. [ 34 ] As regards the accused’s argument that he is entitled to a stay of proceedings for abuse of process under ss. 7 and 24(1) of the Charter because the alleged disclosure deficiencies compromised trial fairness and undermined the integrity of the judicial process, the Crown asserts that the accused’s arguments before the judge were not framed in abuse of process and says that the accused is thus attempting to raise a Charter argument not made at trial.

Such an argument, says the Crown, should only be allowed in “exceptional circumstances,” where a miscarriage of justice would otherwise result. [ 35 ] The Crown submits that the judge concluded that, although late, for the most part the disclosure was received by the accused well before the trial and that his right to full answer and defence had not been prejudiced. The Crown says that that conclusion was amply supported by the evidence.

[ 36 ] The Crown submits, in all of the circumstances, the judge’s conclusion that the accused’s ability to defend himself had not been prejudiced was not unreasonable. Moreover, a stay of proceedings is an extraordinary remedy only granted in the clearest of cases. The Crown argues that the judge’s finding that this was not such a case is entitled to deference. Further, as regards the accused’s attempt to advance a new Charter argument on appeal, the Crown asserts that he has not demonstrated an exceptional circumstance where such a new argument need be entertained in order to avoid a miscarriage of justice.

Analysis [ 37 ] The judge heard the accused’s motion for judicial stay on June 10, 2013. He reserved his decision, which was delivered June 25, 2013. The judge’s reasons for decision are very thorough and demonstrate clearly that he was completely alive to the evidence submitted on the motion and to the relevant issues and the law as argued by counsel before him. [ 38 ] While concluding that the Crown’s disclosure was tardy and piecemeal, the judge found that, for the most part, it had been provided to defence counsel prior to the preliminary inquiry and certainly prior to the commencement of trial.

Ultimately, the judge concluded that the accused had not shown that his right to make full answer and defence had been detrimentally impacted and thus denied the accused’s request for relief on the ground that his s. 7 Charter rights had been infringed. [ 39 ] As regards the accused’s assertion that the Crown’s late and imperfect disclosure had resulted in a delay of the proceedings such that the accused was deprived of his right to be tried within a reasonable time, the judge thoroughly considered the timelines of the proceedings from March 3, 2010, the date of the charge, until June 10, 2013, the date the motion was argued (contemplating that the trial would commence on September 9, 2013, which it did). [ 40 ] The judge concluded that there were four months of excessive delay caused principally by the Crown’s dilatory disclosure.

He attributed three months of that delay to the Crown and one month to the accused. As a result of this excessive delay, he went on to consider whether the delay violated the accused’s s. 11(

b) Charter right to be tried within a reasonable time. [ 41 ] In so doing, the judge addressed the need to balance the accused’s interests in granting a stay against society’s interests that criminal prosecutions, particularly prosecutions involving serious charges, ought to be decided on their merits after trial. Ultimately, he concluded that in all of the circumstances, “although there have been delays, especially in regards to late disclosure for which the Crown should not be proud, in the context of these charges, they do not warrant a stay of proceedings” (at para. 83). He therefore dismissed the accused’s claim under s. 11(

b) of the Charter . [ 42 ] The standard of appellate review is one of significant deference with regard to the judge’s decisions respecting alleged breaches of the accused’s ss. 7 and 11(

b) Charter rights and the alleged abuse of process, as well as his refusal to grant a judicial stay of proceedings under s. 24(1) of the Charter . [ 43 ] I am not persuaded that the judge committed any error of law, or that his finding was unreasonable. As well, his decision, in my opinion, is not wrong, and certainly is not so clearly wrong as to amount to an injustice. There is no basis for appellate intervention in respect of those decisions. [ 44 ] As part of issue number one, the accused argued, as an alternative remedy, that the judge should refuse to admit the preliminary inquiry evidence of Glow.

The judge did not do so, but instead deferred that request to trial. As will be seen in issue number two, the judge did deal at trial with the admissibility of Glow’s preliminary inquiry evidence. There was no error in deferring that matter to the trial. 2.

Did the judge err in admitting the preliminary inquiry testimony of Glow? [ 45 ] The accused says that the judge erroneously ruled that the Glow evidence was admissible under s. 715(1) of the Code . [ 46 ] He argues that he did not have full opportunity to cross-examine Glow because he did not have important disclosure upon which to challenge Glow, disclosure that was in the possession of the Crown before the preliminary inquiry. [ 47 ] The accused submits that s. 715(1) is concerned with the opportunity to cross-examine, not just that there was cross- examination.

He says that opportunity to cross-examine is denied or restricted when the intention to pursue certain questions is frustrated. [ 48 ] The accused argues that the language of s. 715(1 ) confers on the judge a discretion to exclude previous testimony in circumstances that would operate unfairly to the accused.

Such discretion may be exercised both where there is unfairness in the way in which the evidence was obtained, and where its admission would affect the fairness of the trial itself. [ 49 ] The accused says that the dilatory disclosure by the Crown resulted in the accused being unaware of several relevant facts resulting in a denial of his right to make full answer and defence.

He argues that this should have resulted in the judge ruling that Glow’s evidence was inadmissible under s. 715(1) . [ 50 ] In addition, the accused asserts that the judge erred in admitting Glow’s evidence under the principled exception to the hearsay rule. In so arguing, he acknowledges that the reliability concern necessary for admissibility under the principled exception to the hearsay rule is that of threshold reliability, not ultimate reliability.

He submits that Glow’s evidence did not meet the requirement of threshold reliability and says that much of his testimony was inconsistent with the evidence of other witnesses. [ 51 ] He asserts that these inconsistencies went to the heart of threshold reliability: Glow had a motive to lie; his testimony was given in exchange for a stay of his charges and those of his girlfriend, Delores Saari (Saari); and that certain information was not disclosed to the accused until moments before the testimony of Saari at trial. These factors, says the accused, go to threshold reliability, not ultimate reliability.

[ 52 ] The accused also argues that, despite the fact Glow’s evidence was taken under oath, it was not demonstrated to be truthful.

It was relatively untested due to the dilatory and incomplete disclosure by the Crown and, thus, it should not have been ruled admissible at the trial. [ 53 ] The Crown argues that incomplete disclosure to the accused at the time of the preliminary inquiry does not result in a finding of a lack of full opportunity to cross-examine a witness. [ 54 ] It says the law is well settled that an accused’s ignorance of potentially useful information does not deprive him of full opportunity to cross-examine the witness within the meaning of s. 715(1). [ 55 ] The Crown argues that where counsel is actually prevented from cross-examination (for example, because the judge terminated the examination for some reason) an accused can argue that the requirement was not satisfied, but incomplete information does not give rise to such an argument. [ 56 ] Moreover, the Crown submits that the decision whether or not to admit evidence under s. 715(1) remains a discretionary decision on the part of the judge.

It asserts that the judge dealt fully with the accused’s argument. He noted that the purported differences in the information to be used on cross-examination as argued by the accused were either immaterial or not even articulated in the police information. Further, he noted that most or all of the information contained in the police notes, which the accused complains were not received, was located in other material that had been disclosed.

In sum, says the Crown, there was no basis to conclude that this was one of the “relatively rare” circumstances in which evidence meeting the requirements of s. 715(1) should be excluded. [ 57 ] Moreover, the Crown argues that if the evidence should not have been admitted under s. 715(1) of the Code , it certainly should have been admitted under the principled exception to the hearsay rule. [ 58 ] The Crown submits that there were no significant inconsistencies between the testimony of Glow and the evidence of other witnesses and that the judge, in fact, listed a number of areas where Glow’s testimony was consistent with that provided by other witnesses. [ 59 ] While the judge acknowledged that there were some inconsistencies, that, says the Crown, is not determinative of the test for threshold reliability. [ 60 ] The Crown disputes the accused’s allegation that Glow had a motive to lie because his testimony was being given in exchange for the staying of his charges and those of Saari.

As regards the latter, the Crown asserts that there was no evidence whatsoever that Saari’s charges had anything to do with Glow’s decision to cooperate with the police. In fact, the evidence, including undisputed testimony from the prosecutor of Saari’s charges, was entirely to the contrary. [ 61 ] Moreover, the extent to which Glow’s motive to co-operate with the authorities may have coloured his evidence was thoroughly canvassed in his cross-examination at the preliminary inquiry and was, therefore, available for the jury’s review at trial.

The Crown asserts that Glow’s motive to co-operate with the authorities did not preclude the admission of his preliminary inquiry testimony, particularly given the extensive additional circumstantial guarantees of trustworthiness attached to the preliminary inquiry proceeding.

Analysis [ 62 ] In the course of the trial, the Crown moved for admission of the preliminary evidence of Glow under s. 715(1) of the Code and for leave to play to the jury an audiotape of Glow’s preliminary inquiry testimony. [ 63 ] Section 715(1) of the Code provides: Evidence at preliminary inquiry may be read at trial in certain cases 715.

(1) Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably that the person (

a) is dead, (

b) has since become and is insane, (

c) is so ill that he is unable to travel or testify, or (

d) is absent from Canada, and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings

without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness. [64] As well, the Crown sought admission of the evidence under the principled exception to the hearsay evidence rule. [65] The judge granted the Crown’s motion and admitted as evidence at the trial both the preliminary inquiry testimony ofGlow and the audiotape of his testimony. [66] It is clear from the judge’s reasons that he considered the accused’s arguments that, because he had not received fulldisclosure from the Crown at the time Glow testified at the preliminary inquiry, he did not have full opportunity to cross-examine Glow,thus, the admission of his evidence at trial would be unfair to him. [67] The judge concluded that, as a matter of law, the lack of complete disclosure complained of by the accused did notresult, in the circumstances of this case, in the accused not having full opportunity to cross-examine Glow. [68] The judge referred to the case of R. v.

Lewis (I.A.), 2009 ONCA 874, 256 O.A.C. 268, where the court wrote (at para.68): The better approach, in my view, is to limit consideration of the “full opportunity” requirement to cases where, for example, a witnessrefuses to answer questions in cross-examination, a witness dies or disappears in the midst of cross-examination, or where the presidingjudge curtails cross-examination by imposing improper limitations or restrictions. It should not apply where the failure to cross-examination stems from an accused person’s ignorance of potentially useful information, no matter the cause or reason.

Thosesituations, in my view, are best dealt with under trial fairness, where, as I have indicated, the reason for the missing information canproperly be taken into account as a factor. [69] The determination of trial fairness falls to the discretion of the judge, and that is so even if all of the criteria set forth ins. 715(1) have been met. In R. v.

Potvin, (SCC), [1989] 1 S.C.R. 525, Wilson J. cautioned that the circumstance whichwould give rise to the exercise of discretion to exclude “will be relatively rare and that the discretion to prevent unfairness is not ablanket authority to undermine the object of s. 643(1) [now s. 715(1)] by excluding evidence of previous testimony as a matter of course”(at p. 548). [70] It was with that in mind that the judge then embarked upon a consideration of the specific complaints advanced by theaccused concerning his alleged inability to cross-examine.

After so doing, he concluded that the deficient disclosure of information waseither not material in terms of the issues in the case, or was available in other material which had been disclosed as to provide defencecounsel with sufficient information to cross-examine on the particular points of which he complained. [71] I have reviewed the judge’s reasons for admission of the evidence and the underlying evidence.

I see no error in hisconclusions that the complaints did not warrant a finding of trial unfairness. [72] Moreover, the decision whether to admit the evidence in question was one involving the exercise of discretion by thejudge. As such, the standard for appellate intervention is very high. I see no reversible error on fact or law in the decision of the judge. In my view, his decision is correct and certainly not so clearly wrong as to amount to an injustice.

There is no basis for appellateintervention. [73] As a result, I need not deal with the argument pertaining to whether or not the evidence is admissible under theprincipled exception to the hearsay rule. I will say, however, that had I been required to address this issue, I would have concluded thatthe judge committed no error in his decision in that regard. 3.

Did the judge err in instructing the jurors that they could not draw an adverse inference from the Crown’s failure to callcertain witnesses and did that instruction reverse the burden of proof? [74] The accused argues that the judge instructed the jury that they could draw no inference from the Crown’s decision notto call certain witnesses.

This argument is advanced in respect of a number of witnesses, particularly, Black John, Steve, Sean Sorenson(Sorenson), and Kevin Huber (Huber). [75] The accused says that the first three witnesses could have given evidence pertaining to the sale by Glow of thetelevision set stolen from Baptiste’s apartment at the time of the murders, which evidence may or may not have supported Glow’sevidence concerning the sale. [76] As for the witness Huber, who was with Asham at the time Asham says he received a phone call from the accused, theaccused argues that he may or may not have supported Asham’s evidence that the accused told him that he had just “murked,” i.e.,murdered, two guys. [77] Further, the accused says that the judge did not instruct the jury that they could not draw an adverse inference againstthe accused from the accused’s decision not to call certain witnesses, nor did he remind the jury that the accused was not required to callevidence to prove his innocence. [78] The accused acknowledges that the Crown has broad discretionary powers in presenting its case, that this discretion liesat the heart of the adversarial process and that it is rare for a court to interfere.

But, argues the accused, when the Crown elects not to

call a witness, particularly one the accused needs the jury to hear in order to make full answer and defence, and who the jury was toldwould be called, the accused is put in an untenable position, because, if he is required to call a witness, he loses his ability to cross-examine and his right to argue last. [79] As a result, submits the accused, while the court’s ability to interfere with the Crown’s discretion not to call animportant witness is restricted, the court may tell the jury that they can draw an adverse inference and that, in the circumstances of thiscase, the judge erred in not doing so. [80] Further, the accused asserts that, in directing the jury to ignore defence counsel’s submission that an adverse inferencecould be drawn from the fact that the Crown did not call certain witnesses, the judge created an inference that the accused should havedone so and, thus, erroneously shifted the onus from the Crown having to prove guilt to the accused having to prove innocence. [81] The Crown argues that, at the pre-charge conference, defence counsel explicitly stopped short of requesting aninstruction that an adverse inference could be drawn from the Crown’s failure to call certain witnesses and acknowledged that the law didnot support an instruction that such an inference could be drawn.

However, in his closing submission, defence counsel encouraged thejury to draw such an inference. [82] The Crown says that, at a post-submissions meeting thereafter and before the judge’s charge, the judge advised defencecounsel that a correcting instruction would be necessary and defence counsel replied, “I anticipated that.” Defence counsel, submits theCrown, now argues that, by giving this correcting instruction, the judge reversed the burden of proof and required the accused toestablish his innocence. [83] The Crown asserts that, as a general rule, the failure of a party to produce a witness does not support the drawing of anadverse inference.

Absent something more, for example, a prior announcement by the party in opening statements that the witnesswould be called or reference in the course of the case as to what such a witness would be expected to say when called, the drawing of anadverse inference is not justified. [84] The Crown argues that the judge was correct in his observing that, where neither side chooses to call a witness, the juryis not to speculate as to what that witness might have said had he or she been called, but rather must decide the case on the basis of theevidence that has been presented.

The Crown says there is no reversal of the burden of proof in such a situation. [85] The Crown asserts that modern disclosure rules put both Crown and accused in essentially the same position to assessthe relative merits of presenting certain witnesses. It says the law is well settled. The fact that the calling of a witness by the accusedmight restrict his ability to cross-examine or remove his ability to argue last is of no moment. [86] The Crown says the accused could have called whatever evidence he thought appropriate in this case.

However, it wasnot open to the accused to decline to do so and then invite the jury to speculate that, had a witness been called, his/her evidence wouldhave been beneficial to the accused. [87] There was no error on the part of the judge here. Analysis [88] As a general rule, the failure of a party to call a witness at trial does not support an adverse inference and, as such, it isimproper for counsel to invite the jury to do so. Nor, generally, should the judge do so. [89] This was made clear in R. v.

Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, where, after referring to other cases whichcaution against so commenting to a jury, Binnie J. wrote (at para. 39): It is clear from these authorities that it will rarely be “appropriate” for the trial judge to comment on the failure of the Crown to call aparticular witness, and even more rare to do so with respect to the defence. As Brooke J.A. went on to say in Zehr [(1980), (ON CA), 54 C.C.C. (2d) 65 (Ont. Sup.

Ct.)], at pp. 68-69: There are many reasons why counsel may choose not to call a witness, and our Courts will rarely question the decision of counsel, forthe system proceeds on the basis that counsel conducts the case. Often a witness is not called, and if the reason was known it would notjustify an instruction that an adverse inference might be drawn from the witness not being called. Of importance under our system,counsel is not called upon, or indeed permitted, to explain his conduct of a case [to the jury]. ….

There are exceptions to the general rule, but none apply in this case. [90] Moreover, in this case, defence counsel raised the adverse inference issue at the pre-charge conference, butacknowledged that the jurisprudence did not support the drawing of an adverse inference. [91] Nevertheless, in his closing submission, he encouraged the jury to do so.

[ 92 ] Following counsel’s submissions to the jury, a post-submissions meeting was held and the judge advised that a correcting instruction would be necessary and given in his jury charge. He then did so, as follows: I do, however, wish to make some comments about some of the matters which were made during the course of yesterday’s submissions. During his submission, [defence counsel] made mention of the fact that Black John or Steve or [Sorenson], the individuals, according to Mr. Glow and/or Ms.

Saari, who had involvement in the sale of the TV, were not called as witnesses, perhaps inviting you to infer that they would not have supported the evidence of Mr. Glow and Ms. Saari about a TV in their home. You cannot make such an inference. Who knows what these people would have said? They may have supported Mr. Glow or they may have not supported Mr. Glow. To infer anything about what they may have said would be speculation. Remember that I told you that although you may wish the evidence was more complete in certain areas, you will have to reach verdicts on the evidence as it stands.

You should not speculate about what others may have said if they had been called as witnesses. The same applies to Mr. Huber. [Defence counsel] noted that he was not called. Again, you can make no inference unfavourable to the Crown based upon Mr. Huber’s absence. By so doing, you are speculating that Mr. Huber would not support Mr. Asham and you cannot speculate. [Defence counsel] also made mention that there might have been a number of people that evening who saw [the accused] and no one came to give evidence to say that [the accused] was wearing a jacket that was found in the dumpster.

The absence of such people again does not allow you to infer that [the accused] was or was not wearing that jacket. You must draw any inference from the evidence. It is up to you whether you conclude that the DNA evidence regarding that jacket, coupled with other evidence that you heard, is enough to convince you that [the accused] was wearing that jacket on that occasion or not. But you cannot use the fact that no evidence was called from people who actually saw [the accused] wearing that particular jacket to come to your conclusion on that issue.

A similar point can be made about [defence counsel’s] reference to the lack of wiretaps and blood spatter evidence. You cannot draw any inferences against the Crown from the lack of such evidence because you again would be speculating what that evidence would be. In addition, you cannot presume that such evidence or indeed other investigative techniques would have been reliable or even appropriate in the first place.

No evidence was led as to what proper investigation practice is and you should not assume that you know what it is and what it is not and what such a technique, even if it’s available, would have yielded. You must make your decision on the evidence given to you in this case. Finally, one further matter. [defence counsel] mentioned the possibility that Ms. Merrick might have come back to her apartment at some point after the murders and obtained information at the crime scene which she could have imparted to others. You cannot draw that inference. Unlike the absence of witnesses about which I have just talked, Ms.

Merrick was a witness. The suggestion that she might have come back after the fact and learned about the details of the crime is not something you can consider since she was not given the opportunity to comment upon it while she was on the witness stand. Not only would an answer to that question be speculation, she was here and no one felt it important enough to ask her about it. That suggestion should not be considered by you. Remember, you must decide only on the evidence before you.

You can draw inferences but only from the evidence before you. …. [ 93 ] Further, there is no basis to suggest that in so commenting the judge created any inference that the accused should have called the witnesses in question. Nor did the judge shift the onus of proof from the Crown to the accused. Almost immediately after giving the correcting instruction, the judge charged the jury as follows: Let me say a few words about the burden of proof. [The accused] does not have to present evidence or prove anything in this case, and in particular he does not have to prove that he is innocent of the crimes charged.

From start to finish, it is Crown counsel who must prove [the accused] guilty beyond a reasonable doubt. It is Crown counsel who must prove [the accused’s] guilt beyond a reasonable doubt, not [the accused] who must prove his innocence. You must find [the accused] not guilty of an offence unless Crown counsel satisfies you beyond a reasonable doubt that he is guilty of it.

[ 94 ] The judge committed no error in respect of his instruction regarding adverse inferences or burden of proof. 4.

Did the judge err by allowing the introduction of evidence that the accused had been in custody, had the number “187” tattooed on his arm and was involved in drug trafficking? [ 95 ] The accused argues that the judge erred in allowing the admission of certain evidence from the witness Asham before the jury. [ 96 ] That evidence was that Asham had met the accused while they were both in custody at the Headingley Correctional Centre, had knowledge of the accused’s tattoo of the number 187 and knew that the tattoo represented a murder-for-hire gang of which the accused was the leader. [ 97 ] The accused says the Crown wanted this information before the jury to establish that the murders were planned and were therefore first degree murder, and to support its application to have Glow’s evidence admitted at trial. [ 98 ] The accused submits that while the judge gave the jury a limiting instruction as to the use the jury could make of this evidence, the limiting instruction was insufficient.

It was given only once at the conclusion of the Crown’s direct examination of Asham and was not repeated during the judge’s charge to the jury. [ 99 ] In addition, the accused argues that no limiting instruction, or any instruction at all, was given by the trial judge when other impermissible character evidence was given before the jury.

Specifically, he says that when Glow testified that the accused was a member of a murder-for-hire gang and involved in the drug trade, and when Saari testified that the accused was involved in the drug trade, there was no instruction by the judge to the jury as to how that evidence could be used. [ 100 ] The accused submits that the jury was not aware that they could not use this bad character evidence from Glow and Saari about the accused to determine whether the accused was more likely to have committed the crimes charged.

As well, that the lack of instruction as to how the evidence could be used was even more problematic in this case because the jury was warned to be careful of the testimony of the unsavoury witnesses Glow and Asham. [ 101 ] Thus, asserts the accused, the judge erred in allowing the admission of this impermissible character evidence and erred in his instruction or lack of instruction as to how the jury could use that evidence in determining the guilt of the accused. [ 102 ] The Crown argues that the evidence complained of was relevant in a number of ways.

Firstly, it explained why the accused would be willing to contact Asham and Glow for assistance after committing the murders; namely, because the accused knew Asham and Glow as criminals who were engaged in criminal activity. Thus, arguably he would have felt comfortable seeking their assistance.

Secondly, the fact that Asham was aware of the accused’s tattoo of the number 187 corroborated Glow’s evidence and was, thus, important for that purpose. [ 103 ] Thirdly, Asham testified that he believed the tattoo represented the accused’s gang or crew and Glow testified that the accused told him that he was starting a murder-for-hire operation named “either MS13 or 187.” [ 104 ] Thus, this evidence was highly relevant to the issue of planning and deliberation with Glow testifying that the accused said the murders in question were his “first job.” [ 105 ] The Crown submits that this evidence is not prejudicial in the legal sense, that is, it did not encourage the jury to draw an inappropriate inference.

Rather, says the Crown, if believed, it would have led to the entirely legitimate conclusion that the accused had committed the murders as part of the “job” to which he referred, and, thus, that they were planned and deliberate. Accordingly, the evidence was not “impermissible character evidence.” [ 106 ] Further, the Crown asserts that the judge carefully instructed the jury as to the use of the evidence.

In fact, the judge specifically instructed the jury that it would be wrong to use that evidence to conclude that the accused would be more likely to have committed the offences with which he was charged. [ 107 ] Not only was that instruction given by the judge in the course of the trial evidence, but, says the Crown, contrary to the accused’s assertion, the warning was repeated again in the judge’s final charge to the jury. [ 108 ] The Crown asserts, therefore, that there is no basis for belief that the jury made inappropriate use of the evidence in question.

Analysis [ 109 ] The evidence of which the accused complains, and describes as bad-character evidence, was clearly relevant. [ 110 ] In deciding whether such evidence is admissible, the judge must balance its probative value against its prejudicial effect. The evidence was not prejudicial in the legal sense, but its probative value was significant. If believed by the jury it could lend credence to the evidence of Asham and Glow.

It could explain why the accused was prepared to contact each of them following the murders, both because the accused knew each of them and knew that they themselves were involved in criminal activity. Moreover, it could provide some common-sense explanation as to why the accused would have been prepared to make the disclosures to them, which they say he did, concerning his involvement in the murders. The evidence also could lead the jury to the conclusion that the murders were

committed as part of a job and were therefore planned and deliberate, thus supporting a conclusion of guilt for first degree murder. [ 111 ] Having admitted the evidence, the judge appropriately cautioned the jury as to how the jury was to use the bad-character evidence and, in particular, as to how it could not use that evidence. He gave a caution in that regard in the course of the trial and in his charge to the jury at the conclusion of the trial. [ 112 ] In my opinion, the judge made no error in admitting the evidence and his caution to the jury as to how the evidence could be used was clear and correct.

There is no basis here for appellate intervention in respect of issue number four. 5. Did the Crown act “contrary to law” by not producing certain witnesses at the trial? [ 113 ] The accused argues that, in order for him to make full answer and defence, it was necessary that he knew the case that he was required to answer.

He says that he repeatedly requested witness contact information from the Crown, but that those requests were denied. [ 114 ] The accused submits that the Crown claimed it had security concerns respecting the witnesses, but never explained what those concerns were, nor answered how those unexplained security concerns overrode the accused’s presumption of innocence. [ 115 ] The accused asserts that, by reason of the non-production by the Crown of certain witnesses at trial, he was unable to challenge those witnesses on their evidence. [ 116 ] The accused refers particularly to the witness Sorenson, who was on the witness list read to the jury at the outset of the trial.

While the Crown subpoenaed Sorenson, it did so only a few days before the trial began and never brought Sorenson to the trial. [ 117 ] The accused says he was made aware of Sorenson’s location a week after the trial had started and that, not only did the Crown refuse to bring Sorenson to court, it had previously refused to tell the accused where Sorenson was located. [ 118 ] Thus, argues the accused, the judge erred in finding that the accused was responsible for bringing Sorenson to court. [ 119 ] The Crown argues that, while the accused says his rights were violated when the Crown failed to call certain witnesses or bring them to court, the accused sought no relief at trial concerning either complaint.

No motions were made, no evidence was called, no rulings were issued and, accordingly, there is little for this court to review on appeal. [ 120 ] The Crown says that the witnesses to whom the accused refers were tangential at best, that when they were located and/or produced, defence counsel called none of them and, in some cases, made little effort even to speak to them. The Crown located Sorenson in a British Columbia penitentiary on September 13, 2013.

It advised the accused’s counsel immediately and, six days later, defence counsel had made no attempt to contact Sorenson, let alone explore ways to bring his evidence to trial. [ 121 ] The Crown says that many of the witnesses to whom the accused refers were produced by Crown subpoena pursuant to an arrangement between Crown and accused’s counsel that had been worked out prior to trial. Thus, argues the Crown, there is no merit to this ground of appeal. Analysis [ 122 ] The law is clear that there is no property in a witness.

Either the Crown or the defence can have access to the witness if the witness is prepared to give access.

Likewise, both are entitled to subpoena the witness. [ 123 ] There is no obligation upon the Crown to call witnesses in order to accommodate the accused, nor to bring witnesses to court for the accused. [ 124 ] It appears that, in this case, the Crown agreed simply that it would advise defence counsel of any witness it brought to court pursuant to a subpoena and, if not called as a witness, that it would not send the witness away without letting the defence know of the witness’s attendance so as to assist defence counsel in being able to speak to and, if it chose, call such witness at trial.

In fact, defence counsel did speak to and/or interview some individuals by reason of this arrangement, though he did not call any of them as a witness. [ 125 ] The accused’s principal complaint in respect of issue five relates to the witness Sorenson. The Crown attempted to serve a subpoena upon Sorenson. Sheriff’s officers had been unable to do so, and only at about the time the trial commenced did they ascertain that he was in custody in British Columbia. Accordingly, a subpoena could not be served. Rather, a court order would have to have been obtained and an interprovincial subpoena issued.

The Crown chose not to pursue the matter further, but did advise defence counsel of that fact and of Sorenson’s whereabouts. [ 126 ] This information was conveyed to defence counsel in the early days of the trial. The trial was scheduled to continue for five weeks. It would appear that defence counsel did not contact Sorenson for the purpose of attempting to interview him, nor did he take any steps to attempt to bring him to Winnipeg to testify at trial.

As well, no motions were made by defence counsel concerning the possible attendance of Sorenson as a witness, although much allocated trial time remained. [ 127 ] In any event, it appears that Sorenson was, at best, a tangential witness.

The purpose of his attendance as a witness was to obtain evidence of his involvement in the purchase from Glow of the television set which the accused had stolen at the time of the murders and which he had left with Glow to sell for him, the two of them to divide the proceeds of sale. [ 128 ] Glow testified that he sold the television between 8:00 and 9:00 a.m. on the morning immediately following the murders, the murders having occurred about four hours earlier.

Glow’s evidence at the preliminary inquiry was that he contacted Black John, a person whom he knew bought things like this, and that Black John brought a gentleman with him who looked at the television and then

bought it. [ 129 ] Defence counsel cross-examined Glow at the preliminary inquiry in connection with the sale of the stolen television. Although he did not have all of the police notes concerning this at the time of the cross-examination, he did have the note of Constable Reid from the January 6, 2011 interview of Sorenson. In that note was reference to the belief that the stolen television from the double homicide at 729 Maryland Street on January 31, 2009, was in Sorenson’s possession at some point following the murder (at approximately 9:00 a.m. on January 31, 2009).

There was, as well, reference to the fact that another officer had stated that Glow sold the television the next morning to Sorenson for $600. [ 130 ] Thus, by reason of Cst. Reid’s note, defence counsel was aware at the time he cross-examined Glow at the preliminary inquiry of the possible involvement of Sorenson in the sale of the television set, but chose not to cross-examine Glow with the view of attacking his evidence on that point. [ 131 ] Glow’s girlfriend, Saari, did not testify at the preliminary inquiry, but did testify at trial and was considered a Vetrovec witness for purposes of her trial evidence.

She testified that the television was sold approximately two days after it was received by Glow to a couple of people who attended their apartment to make the purchase. Clearly, her evidence was in conflict with that of Glow as to when the sale occurred. [ 132 ] Defence counsel argued that he hoped to obtain from Sorenson evidence consistent with that of Saari and, thus, inconsistent with Glow for the purpose of using that inconsistent evidence to attack Glow’s credibility.

Defence counsel acknowledged, however, that, while he wanted Sorenson produced as a witness, he did not know what Sorenson would actually say on the issue if called as a witness. It may or may not have supported Glow’s evidence. [ 133 ] Of importance is the fact that, although defence counsel was aware by reason of Cst.

Reid’s note of the possible involvement of Sorenson at the time he cross-examined Glow at the preliminary inquiry, he chose not to cross-examine Glow with the view of attacking his evidence as to the sale of the television. [ 134 ] Accordingly, notwithstanding his failure to cross-examine Glow at the preliminary inquiry despite having Cst.

Reid’s note, in the final result, defence counsel was able to attack Glow’s credibility at trial as regards the sale of the television set based upon the contradictory trial evidence of Saari. [ 135 ] Lastly, contrary to the accused’s assertion, the jury was not told by the Crown that Sorenson would be called as a witness at trial. [ 136 ] In my opinion, there was no obligation upon the Crown to call Sorenson as a witness or to make him available to the accused.

Furthermore, his evidence on a tangential issue was unknown and, from the accused’s perspective, might or might not have provided contradictory evidence to that of Glow on that point beyond the already contradictory trial evidence of Saari. [ 137 ] There was no motion made and no order given relative to the production of the potential witness Sorenson. This court reviews for error. Here, there is, therefore, nothing to review or with which to interfere, nor is there any merit to the point argued.

Conclusion [ 138 ] Having considered the issues raised on appeal by the accused, I am not persuaded of any error by the judge. There is no basis for appellate intervention and thus, I would dismiss the appeal. J.A. I agree: J.A. I agree: J.A.