R v Tymchyshyn (C) et al, 2016 MBCA 73

Citation: R v Tymchyshyn (

C) et al, 2016 MBCA 73 Date: 20160624 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN : Docket: AR14-30-08138 ) BETWEEN : ) ) HER MAJESTY THE QUEEN ) J. L. Ostapiw ) for the Appellant Respondent ) K. D. Brincheski ) - and - ) ) K. L. Jones KRISTOPHER DON BRINCHESKI ) for the Appellant ) C. S. Tymchyshyn (Accused) Appellant ) ) - and - ) A. Y.

Kotler ) for the Respondent Docket: AR14-30-08142 ) BETWEEN : ) ) Appeals heard: HER MAJESTY THE QUEEN ) February 8, 2016 ) Respondent ) ) Judgment delivered: - and - ) June 24, 2016 ) COREY SCOTT TYMCHYSHYN ) ) (Accused) Appellant ) CAMERON JA Introduction [ 1 ] In the summer of 2008, cottagers discovered a body located in a barrel found floating in the Lee River near Lac du Bonnet, Manitoba. An autopsy revealed that the deceased had been struck numerous times with an object resulting in several skull fractures.

His injuries were consistent with having been struck from behind and there were no defensive wounds. [ 2 ] The accused were convicted, by a jury, of first degree murder of the deceased. The grounds of appeal relate to the fact that they were tried jointly, the evidentiary consequences of such a trial, the refusal of the trial judge to order severance or a mistrial, and the ramifications of misstatements by counsel to the jury. [ 3 ] Contrary to the assertions of both accused, for the reasons provided below, it is my conclusion that the trial judge did

not make any errors in law in the many discretionary rulings that she made. Throughout the trial, she engaged in a careful balancing of the respective rights of both accused, mindful of their contrary interests, resulting in a trial that was fair to each of them. Background and Proceedings [ 4 ] The facts, as alleged by the Crown, are that the deceased was a drug dealer to whom one of the accused, Corey Scott Tymchyshyn (Tymchyshyn), owed money and that this was the motive for the murder.

The other accused, Kristopher Don Brincheski (Brincheski), was Tymchyshyn’s co-worker and friend who was also involved in the drug trade and heavily in debt. On February 6, 2008, Brincheski attended Tymchyshyn’s house in Winnipeg. The Crown relied, in part, on text messages exchanged between Brincheski and Tymchyshyn in support of its theory that Brincheski went to Tymchyshyn’s garage to await the deceased pursuant to a plan to kill him.

In its theory, the deceased, who had, by prior arrangement, attended to Tymchyshyn’s residence, was led to the garage by Tymchyshyn, where he was beaten to death by both accused, including being hit on the head with an object similar in shape to that of a hammer. [ 5 ] All parties agree that, after the deceased was killed, both accused wrapped the body of the deceased with a tarp, stuffed it into a barrel and, using the deceased’s vehicle, drove to the Lee River where they dumped it. [ 6 ] To a large extent, the appeal relates to the evidence of four witnesses called by the Crown.

The first of these witnesses, George Lancaster (Lancaster), resided in Winnipeg in the same house as Tymchyshyn. He testified that Brincheski was at the residence on February 6, 2008. He said that he heard Tymchyshyn tell Brincheski, “Don’t miss”, just before Brincheski left the residence. He also said that the deceased attended the residence after Brincheski had left, and that Tymchyshyn and the deceased then left the residence together. [ 7 ] Next, Allan Hallson (A. Hallson) and his daughter Candice Hallson (C.

Hallson) (the Hallsons), testified about conversations that they each had with Tymchyshyn after he had been charged with the murder of the deceased. The conversations occurred because Tymchyshyn was upset about how A. Hallson was conducting himself regarding a marijuana grow operation that he and Tymchyshyn were engaged in. Both of the Hallsons stated that Tymchyshyn mentioned that the last person who angered him ended up “in a barrel”. In fact, A.

Hallson testified that, even before this fallout, Tymchyshyn had told him that he had killed a man who was “crossing him” over a grow operation and that he had “shot” the man and “put him in a barrel and put him in a river, by a cottage.” [ 8 ] The last of the four witnesses was Brincheski’s brother (A. Brincheski).

He provided a statement in which he stated that Brincheski told him that he was present when the deceased was killed and that “somebody was waiting for [the deceased] in the garage.” The statement was admitted into evidence after a Khelawon application ( see R v Khelawon , 2006 SCC 57 , [2006] 2 SCR 787 ), subject to editing to remove any prejudice to Tymchyshyn. [ 9 ] Both of the accused testified. Each stated that there was no plan to murder the deceased, denied being present when the deceased was killed, and testified that the other was responsible for the killing.

Additionally, each stated that they helped the other dispose of the deceased’s body. This is often referred to as a “cut-throat” defence. Grounds of Appeal [ 10 ] Brincheski raises three grounds of appeal. First, that the trial judge erred in the procedure that she followed when determining whether his counsel could cross-examine Lancaster regarding Tymchyshyn’s bad character. Next, that she erred in prohibiting the cross-examination of both Lancaster and A. Hallson with respect to Tymchyshyn’s bad character on the basis that an evidentiary foundation had not been laid.

Finally, he argues that the trial judge erred in editing the statement of A. Brincheski in a way that limited his ability to argue the ultimate reliability of that statement. [ 11 ] The grounds on which Tymchyshyn appeals are that the trial judge erred in allowing him to be cross-examined on bad- character evidence, that she erred in dismissing his motion for severance, and that she erred in denying his motion for a mistrial.

He also argues that the trial judge gave inadequate instructions to the jury concerning misstatements made about his bad character by Brincheski’s counsel in her closing address to the jury. [ 12 ] In light of the fact that Brincheski and Tymchyshyn both appeal regarding the issue of bad-character evidence, I will deal with those two matters together. I will then address the remainder of Brincheski’s grounds of appeal. Finally, I will deal with Tymchyshyn’s remaining grounds of appeal.

Discussion Bad-Character Evidence Lancaster—The Procedural Issue [ 13 ] The issue of Tymchyshyn’s bad character in relation to Lancaster’s evidence arose while Lancaster was being cross- examined by Brincheski’s counsel (not the same as on the appeal). When she attempted to elicit the bad-character evidence, the Crown objected. Lengthy argument was heard over the course of two days.

Ultimately, the trial judge disallowed the questions on the basis that, at that stage of the trial, there was no evidentiary foundation to show that the probative nature of the evidence was sufficient to justify its admission in light of the prejudicial effect it would have on Tymchyshyn. [ 14 ] Brincheski submits that the trial judge erred in reaching her conclusion on the basis that the procedure followed in reaching the determination was flawed. He says that, had the proper procedure been followed, it would have resulted in the necessary evidentiary foundation.

In support of his position, he maintains that, rather than merely relying on the submissions of counsel, a full voir dire , wherein Lancaster testified, was necessary to determine the matter. Alternatively, he argues that, even if no voir dire was held, the trial judge should at least have had a copy of Lancaster’s statement to determine its probative value.

[15] In R v Hodgson, (SCC), [1998] 2 SCR 449, Cory J, writing for a majority of the Supreme Court ofCanada, enunciated the test for appellate review regarding the admission of a confession by an accused into evidence without holding avoir dire. He said (at para 41): The trial judge has a duty “to conduct the trial judicially quite apart from lapses of counsel”: see R. v. Sweezey (1974), (ON CA), 20 C.C.C. (2d) 400 (Ont. C.A.), at p. 417. This includes the duty to hold a voir dire whenever the prosecution seeks toadduce a statement of the accused made to a person in authority: see pp. 417-18.

However, where the defence has not requested a voirdire and a statement of the accused is admitted into evidence, the trial judge will only have committed reversible error if clear evidenceexisted in the record which objectively should have alerted him or her to the need for a voir dire notwithstanding counsel’s silence.

Thus, the test for holding a voir dire is assessed by an appellate court’s objective review of the evidence in the record to determinewhether something should have triggered the trial judge’s obligation to conduct an inquiry. [emphasis added] [16] More recently, in the case of R v SGT, 2010 SCC 20, [2010] 1 SCR 688, the Court considered the failure of the trialjudge to hold a voir dire prior to admitting a written apology that an accused, who was charged with sexually assaulting his daughter,sent to his ex-wife who was the mother of the child.

Writing for the majority of the Court, Charron J applied the test in Hodgson andfurther clarified (at para 35): [I]n deciding whether there was clear evidence that ought to have triggered the need for the trial judge to raise the issue on his ownmotion, an appellate court must consider the question from the perspective of the trial judge at the time the decision was made. [17] Also, in R v Rockey, (SCC), [1996] 3 SCR 829, the Court underscored the need for a contextualanalysis in considering the failure of a trial judge to conduct a voir dire prior to admitting out-of-court statements (at para 31): To appreciate the reason for the admission of the additional statements and their significance it is necessary to consider their place in thecontext of the trial and how it unfolded.

It behoves appellate courts to remind themselves that a trial is a dynamic process. Particularevents and rulings are best judged, not in isolation, but in connection to the events that precede and follow them. The reception of theadditional statements in this case provides a classic illustration of the need to consider the dynamics of the trial. [18] At the outset it is important to note that, in this case, none of the parties asked the Court to enter into a voir dire.

Areview of the lengthy submissions shows that Brincheski’s counsel drew the Court’s attention to the case of R v Boucher (DE) et al,2011 YKCA 7, 310 BCAC 273. That case states that, in circumstances where a cut-throat defence is raised, it may be necessary to holda voir dire to determine whether the questions “are proper in the sense that they are being asked in good faith and are relevant” (at para73).

Regarding the necessity for a voir dire in this case, Brincheski’s counsel simply stated, “If we need to have a voir dire with respectto the appropriateness of the questions, then perhaps that’s something we can engage in. But again, my right not to tip my hand so tospeak is something I’m very concerned about.” [19] The issue of whether a voir dire is required in circumstances such as this was dealt with by this Court in R v Kematch(SD) et al, 2010 MBCA 18, 251 ManR (2d) 191, wherein the trial judge relied on witness statements to make a ruling in advance of thetrial.

Monnin JA stated (at para 43): I know of no authority and none was provided to the court stipulating that before arriving at a decision on what evidence might or mightnot be admissible, a trial judge must conduct a voir dire with viva voce evidence. That is a decision to be made by a trial judge on thebasis of the issue before him or her and the nature of the case itself.

No party objected to the manner in which the evidentiary issueswere being dealt with at the time they were being dealt with and if [the accused] was not satisfied with how the matter was beingconducted, it was incumbent on him to state his position as the matter was being addressed. [20] In my view, the same applies in this case. Here, the trial judge proceeded based on the arguments of counsel. While itmay have been preferable for her to have had a copy of Lancaster’s statement, Brincheski’s counsel did not attempt to provide one to theCourt.

Instead, in response to requests from the trial judge regarding the nature of the proposed evidence she wished to elicit, counsel forBrincheski listed three incidents found in Lancaster’s statement. Thus, it cannot be said that the trial judge was unaware of the nature orrelevance of the bad-character evidence that Brincheski wished to elicit from Lancaster. [21] More importantly, the evidentiary foundation that the trial judge found lacking did not involve the substance ofLancaster’s evidence.

Rather, as I next discuss, at this point in the trial there was no evidence to support Brincheski’s counsel’ssuggestion that the defence of duress or a cut-throat defence would be raised, nor did she assert that she wished to present evidence toestablish a foundation for those defences through a voir dire. Therefore, Brincheski’s procedural arguments in this regard cannot

succeed. Prohibition of Cross-Examination of Lancaster and A. Hallson on Bad-Character Evidence of Tymchyshyn—Evidentiary Foundation Trial Proceedings [ 22 ] As earlier stated, the issue of cross-examination concerning bad-character evidence first arose in relation to Lancaster. During the course of argument, it became clear that a significant issue was whether an evidentiary foundation existed establishing the probative value of the evidence which would justify its admission in light of its prejudicial effect on Tymchyshyn.

All parties agreed that, in the case of duress or a cut-throat defence, the probative value of bad-character evidence of a co-accused would justify its admission.

The issue was whether there was sufficient evidence before the Court to establish that either defence was engaged. [ 23 ] Again, in discussing the trial judge’s concerns regarding this issue, Brincheski’s counsel first stated that she had “great reservations indicating in open court the direction that the defence is going to be taking”, and she later stated that, “without trying to get into too much detail . . . the defence of duress is something that is at play here.” Further, she said, “I’ve made no secret now of the fact that duress is going to be an issue,” and she also asserted, “The cutthroat defence is live and at play here”.

However, she failed to elaborate as to which defence was at play, whether both defences were at play or how either defence was to be established. [ 24 ] In ruling that Lancaster could not be questioned regarding the bad-character evidence, the trial judge stated: [Brincheski’s counsel] obviously does not want to show all her cards at this, but it puts the court in an awkward position. I don’t know if she intends to call Mr. Brincheski or other witnesses to establish duress, or if it may come out of other witnesses.

The fact remains that there’s nothing available at this stage to make this evidence probative of anything. [emphasis added] [ 25 ] Contrary to Brincheski’s contention that the trial judge did not also consider the possibility of a cut-throat defence, an examination of the record shows that this was also put forward and rejected as a basis for admission. [ 26 ] Next, prior to the Hallsons testifying, counsel for Brincheski asked the Court for direction concerning areas that she would be allowed to explore with them in cross-examination. She wanted to cross-examine A.

Hallson about his statement that Tymchyshyn had admitted to having killed another person. She also wanted to question him regarding the fact that A. Hallson said that Tymchyshyn had assaulted him. [ 27 ] The trial judge disallowed the proposed cross-examination for the same reason as she disallowed it with respect to Lancaster. She stated: In my view, nothing really has changed from the last time this issue was raised. The test is clear. Bad character evidence is presumptively admissible at the behest of a co-accused unless the prejudicial effect substantially outweighs the probative value.

Therefore, there’s not an unfettered right to adduce this type of evidence, and it’s not simply enough, in my opinion, to assert that it is necessary for the co-accused to be able to raise a reasonable doubt. Here, the comments that co-counsel want to elicit are very prejudicial to Mr. Tymchyshyn and not even a remote probative value has been demonstrated as of yet. Position of the Parties [ 28 ] Brincheski underscores that the threshold for admitting evidence of bad character is lower when a co-accused seeks to enter it, than when the Crown does.

He submits that his counsel was clear that the defence of duress was at play and that she anticipated a cut-throat defence. He also argues that the specific nature of the proposed evidence, being that Tymchyshyn said words to A. Hallson to the effect that he previously killed someone else, was found to be probative and admissible in the case of R v Earhart (D) , 2010 ONCA 874 , 270 OAC 250 . He submits that Earhart should have been followed by the trial judge in this regard.

At the end of the day, he argues that the refusal to allow the proposed cross-examination impaired his right to make full answer and defence. [ 29 ] The Crown agrees that the threshold for admitting bad-character evidence is lower for a co-accused. Nevertheless, the Crown contends that a co-accused who wishes to adduce such evidence must demonstrate that it has some probative value, especially in light of the obvious prejudice to the other accused.

The Crown argues that the vague references made by counsel as to the possibility of a cut-throat defence or duress were not sufficient to justify the admission of the evidence. [ 30 ] The Crown also notes that, at the time the trial judge made the rulings regarding Lancaster and A. Hallson, she explicitly stated that, if the situation changed and the probative value of the evidence was demonstrated, the witnesses could be recalled for further cross-examination. The Crown states that, once Tymchyshyn testified, the probative value of the evidence had been established and the witnesses could have been recalled.

However, the Crown observes that, despite this development, Brincheski’s

counsel stated that she was not seeking to have this done. Further, the Crown comments that she did not cross-examine Tymchyshynregarding the bad-character evidence that she earlier attempted to lead through Lancaster. Analysis [31] Both parties submit, and I agree, that absent an error in law or a misapprehension of material evidence, the decision of atrial judge regarding the admissibility of evidence is entitled to deference.

See Kematch at para 45; R v MNP, 2014 MBCA 2 at para 15,303 ManR (2d) 67; R v Cansanay (JH), 2012 MBCA 103 at para 10, 284 ManR (2d) 249; and R v Korski (CT), 2009 MBCA 37 at para36, 236 ManR (2d) 259. [32] The general rule (with limited exceptions) is that the Crown cannot introduce bad-character evidence of an accused. The basis for this rule is not that such evidence is necessarily irrelevant but, rather, that it would create undue prejudice to an accused.

See Morris v The Queen, (SCC), [1983] 2 SCR 190; and Sidney N Lederman, Alan W Bryant & Michelle K Fuerst, TheLaw of Evidence in Canada, 4th ed (Markharm: LexisNexis, 2014) at 626. On the other hand, an accused may cross-examine witnessesfor the Crown unfettered (R v Lyttle, 2004 SCC 5, [2004] 1 SCR 193). [33] Where there are co-accused in a joint trial, an accused may call bad-character evidence relating to another co-accused inorder to show that it is more likely that the co-accused committed the crime in question.

However, the admission of such evidence issubject to the proviso that its probative value must outweigh its prejudicial effect. See Earhart at paras 73-77. In R v Suzack (CV) et al(2000), (ON CA), 128 OAC 140, the Court noted that, where such a situation exists, an accused is not necessarilyentitled to the same trial as if he or she had been tried alone. Rather, the respective rights of all of the accused must be balanced (seeparas 111-14). [34] In R v Pollock (

R) et al (2004), (ON CA), 188 OAC 37, leave to appeal to the SCC refused, [2004]SCCA No 405 (QL), Rosenberg JA, writing for a unanimous Court, held that before evidence of bad character could be elicited by a co-accused, an evidentiary foundation was required (at para 106): [S]ince evidence of propensity or bad character can carry a very grave risk of prejudice to the fair trial of the accused against whom theevidence is led, it is incumbent on the trial judge to examine closely the probative value of the evidence and the purposes for which theevidence is tendered.

In my view, in a joint trial, counsel’s mere assertion that the evidence is necessary for the accused to make fullanswer and defence is not sufficient given the grave potential for prejudice to the fair trial of a co-accused. There must be someevidentiary foundation to support this assertion. That foundation may come during the Crown’s case through evidence of Crownwitnesses in chief or through cross-examination. In some cases, the evidentiary foundation may not be laid until the defence case. If so,the prejudicial character evidence would only be admissible, if at all, at that time.

The need for this evidentiary foundation is not simplyto avoid irrelevant evidence entering the record. An evidentiary foundation is essential to ensure fair management of the trial. The needfor the highly prejudicial evidence can be properly assessed only when the accused demonstrates through evidence the contours of thedefence. Until then, the trial judge is left to speculate on the importance and necessity of this evidence. [emphasis added] [35] As I earlier stated, in support of his argument that the trial judge erred in disallowing his proposed cross-examination,Brincheski relies on Earhart.

The Earhart case involved a situation where both Earhart and his co-accused Kirk were jointly tried formurder. The majority of the Ontario Court of Appeal held that the trial judge did not err in admitting bad-character evidence, includingevidence that Earhart had threatened others and told people that he had killed before. The Court noted that the probative value of thebad-character evidence was that it could be used as propensity evidence in support of Kirk’s assertion that he played no

part in the killingand did not assist in the murder. It had probative value in showing that, of the two, Earhart was the most likely to have committed themurder and that he was the type of person who could have killed on his own.

It similarly assisted in Kirk’s defence of duress byallowing the jury to assess whether Earhart acted in a threatening manner to Kirk, and to assess whether Kirk was ever in a positionwhere he could safely escape from Earhart. [36] In Brincheski’s view, the Earhart case stands for the proposition that, whenever there is a situation where the drawingof inferences could lead a jury to believe that one of two co-accused being jointly tried for the same crime was the actual perpetrator,bad-character evidence against a co-accused is admissible on the basis that it assists in the ability of the defendant accused to raise areasonable doubt.

He argues that no further evidence is necessary. In support of his position, Brincheski says that, in Earhart, and alsoin the decision of this Court in Kematch, no evidentiary foundation was required prior to the admission of evidence concerning a co-accused’s bad character. [37] In my view, Brincheski’s position is overbroad. The comments made in Earhart must be read in the context of thatcase, which included a cut-throat defence as well as issues of duress.

In Earhart, the testimony of a witness for the Crown concerningthe circumstances of the alleged crime established the significant probative value of the evidence, despite its prejudicial effect. The issueof establishing an evidentiary foundation was not raised in that case because it already existed. [38] More recently, in R v Sherriffe (

C) et al, 2015 ONCA 880, 342 OAC 347, the Ontario Court of Appeal confirmedPollock and reinforced the need for an evidentiary foundation (at para 66): The risk of prejudice to the accused against whom bad character evidence is adduced is not attenuated because the evidence is elicited bya co-accused rather than by the Crown: Pollock, at para. 105. The trial judge must therefore still examine closely the probative value ofthe proposed evidence and the purposes for which it is adduced. A sound evidentiary foundation is essential: Pollock, at para. 106;

Earhart, at para. 75. Likewise, a careful balancing of the fair trial rights of the two (or more) accused: Suzack, at para. 111; Pollock, atparas. 106-107; [R v Diu (AB) et al (2000), (ON CA), 133 OAC 201], at para. 137. [emphasis added] [39] Finally, in Kematch, this Court quoted with approval, para 106 of Pollock (reproduced earlier in these reasons), therebyconfirming that an evidentiary foundation is required.

Thus, Kematch cannot be taken for the proposition that an evidentiary foundationis not required. [40] I would not accede to the argument that the mere existence of a situation, where the cut-throat defence or duress couldconceivably be raised, imports sufficient probative value to justify the introduction of bad-character evidence against a co-accused in ajoint trial. Evidence supporting the probative value of the bad-character evidence is required. [41] In refusing to allow cross-examination of Lancaster and A.

Hallson on the bad character of Tymchyshyn, the trial judgecarefully weighed and balanced the respective rights of the accused. She correctly considered the applicable law and concluded that asufficient evidentiary foundation did not exist. Further, she stated that, should the situation change, she would allow the witnesses to berecalled. In spite of this, Brincheski’s counsel made a tactical decision not to request that the witnesses be recalled and she did not cross-examine Tymchyshyn regarding the bad-character evidence contained in Lancaster’s statement.

While I do not criticize this decision, itsomewhat diminishes Brincheski’s argument that he was unable to receive a fair trial and make full answer and defence. [42] Thus, for the above reasons, I would dismiss this ground of appeal. Cross-Examination of Tymchyshyn on Bad-Character Evidence [43] Tymchyshyn was the first of the two co-accused to testify. As earlier stated, he denied being present when thedeceased was killed. Rather, he said that Brincheski told him that the deceased had hit him with a hand gun and Brincheski respondedby hitting the deceased on the head with a hammer.

Tymchyshyn testified that, after observing the deceased in the garage, he helpedBrincheski to dispose of the body. [44] At the conclusion of Tymchyshyn’s direct examination, the following exchange occurred: [BRINCHESKI’S COUNSEL]: And My Lady, I’ve indicated to my learned friends there’s certain, I guess, clarifications I’m going toneed to have the court make for me before I begin my cross-examination, just with respect to certain evidence and what I can and cannotput to the witness and that sort of thing.

THE COURT: The gloves are off. [45] Specifically, Brincheski’s counsel sought permission to cross-examine regarding bad-character evidence found in thestatements of the Hallsons that was previously disallowed, as well as on Tymchyshyn’s relationship with an ex-girlfriend. Despite theopposition of Tymchyshyn’s counsel (not the same as on the appeal), the trial judge ruled that an evidentiary foundation had now beenlaid for Brincheski’s counsel to elicit evidence of bad character.

The trial judge, having already read the Hallsons’ statements, wasprepared to allow cross-examination on the areas that she had previously prohibited. [46] On the other hand, the trial judge did ask Brincheski’s counsel to detail the evidence of bad character that she intendedto question the ex-girlfriend about. After being provided with a

summary of the statements made by the ex-girlfriend, the trial judgeclarified with Brincheski’s counsel that Brincheski was going to testify, and that he was not going to agree with Tymchyshyn’s version ofevents, thereby confirming a cut-throat defence. Ultimately, the trial judge held that the cross-examination on bad character couldproceed as requested, but that she would give the jury a mid-trial warning respecting its use. [47] In cross-examination, Tymchyshyn admitted to making threats to the Hallsons, but explained that they were empty andonly made to ensure that A.

Hallson took the marijuana grow operation seriously. He admitted to being violent with his ex-girlfriend, butalso stated that she was violent with him. He also denied a number of suggestions made to him by Brincheski’s counsel. [48] Tymchyshyn argues that, despite the fact that the bad-character evidence had some probative value, it was outweighedby the prejudicial effect on him.

He maintains that it was clear from the proceedings that a cut-throat defence was going to be raised, anddespite this, the trial judge declined to find that there was an evidentiary basis to show that the probative value of the evidence wasoutweighed by the prejudicial effect. In his view, the fact that he testified did not change that situation. Further, he submits that the trialjudge erred by allowing unfettered cross-examination into matters of his bad character and that this “gloves off” approach went too far.

He also argues that the fact that the trial judge did not comment on the prejudicial nature of the evidence when making her rulingdemonstrates that she failed to take it into account. He maintains that the resulting evidence was so prejudicial that it could not beremedied by a curative instruction to the jury. [49] In R v Kociuk (RJ), 2011 MBCA 85, 270 ManR (2d) 170, aff’d, 2012 SCC 15, [2012] 1 SCR 529, Chartier JA (as he thenwas) stated (at para 6):

The decision by a trial judge as to whether proper jury instructions can cure any potential prejudice to an accused is an exercise injudicial discretion. Assuming the trial judge did not err in law or on the facts, that decision is entitled to significant deference and shouldnot be overturned unless it was so clearly wrong as to amount to an injustice. [50] The issue of the prejudicial nature of the bad-character evidence was front and centre for most of the trial and must beconsidered in light of the many arguments made concerning it.

Despite her comment that the “gloves are off”, the trial judge heardthorough argument and explored the specific areas of the cross-examination proposed by Brincheski’s counsel. [51] The trial judge was aware of the prejudice. However, Tymchyshyn testified that Brincheski was solely responsible for killingthe deceased. Brincheski was entitled to defend himself by suggesting that Tymchyshyn was more likely to have committed the crime byvirtue of his prior history of violence. See Earhart at paras 70-101 and 104.

The trial judge warned the jury of the limited use that couldbe made of the bad-character evidence after the cross-examination of Tymchyshyn and again in her final instructions. [52] Viewing the proceedings in their entirety, the trial judge fairly balanced the rights of both of the accused to a fair trial. In my view, her decision was not wrong, let alone, so clearly wrong as to amount to an injustice. Editing of A. Brincheski’s Videotaped Statement [53] Prior to the commencement of the trial, Tymchyshyn made a motion for severance claiming that the potential evidenceof A.

Brincheski or the admission of his statement as evidence was prejudicial to his right to a fair trial in that it contained inadmissiblehearsay regarding Tymchyshyn (the first motion to sever). In carefully written reasons, the trial judge denied the motion, holding that, ifit became necessary to admit the statement, any evidence that was prejudicial to Tymchyshyn could be redacted. Further, she held that,if A. Brincheski testified as to any of the impugned evidence, it could be dealt with by a strong warning to the jury (see R v Tymchyshyn(CS), 2011 MBQB 261, 271 ManR (2d) 303). [54] As anticipated, A.

Brincheski attempted to recant his statement at the trial. However, a successful Khelawonapplication by the Crown resulted in a ruling that allowed for the admission of his statement against Brincheski. Prior to its admission asevidence, the statement was edited by the Crown and Tymchyshyn’s counsel to remove all material that would be prejudicial to him. [55] After reviewing the edited version, Brincheski’s counsel opposed some of the edits. It was her position that, in some ofthe redacted material, A. Brincheski admitted that he was guessing and assuming certain facts.

She argued that these responses bolsteredher position that A.

Brincheski was speculating in the entirety of his statement, including the incriminating evidence he provided againstBrincheski. [56] Interestingly, each of the edits complained of implicated Tymchyshyn who, in turn, opposed the admission of anyportion of the statement that would implicate him. [57] The trial judge denied Brincheski’s request to restore the edits on the basis that there were other areas in A.Brincheski’s statement wherein he was speculating or guessing that would be subject to cross-examination on the issue of speculation ina manner that would not prejudice Tymchyshyn. [58] Brincheski argues that the editing of a witness statement must be done in a manner such that it does not result insomething of value being lost to an accused person.

He contends that the ultimate reliability of the statement was a matter for the juryand that he was denied the ability to place all evidence before the jury concerning that issue. [59] As I earlier stated, absent an error in law or a misapprehension of material evidence, the decision of a trial judgeregarding the admissibility of evidence is entitled to deference. [60] A court has inherent jurisdiction to edit statements and other forms of evidence so long as it can be done withoutdistorting the nature of the evidence.

Further, the power to edit may be coupled with the discretion to exclude evidence whoseprejudicial effect outweighs its probative value. See The Hon EG Ewaschuk, QC, Criminal Pleadings & Practice in Canada, 2nd ed(Toronto: Canada Law Book, 2015) vol 2 (loose-leaf release 120) ch 16:2217 at 16-41. [61] In R v Sidhu, 2011 ONSC 4577 , aff’d, 2013 ONCA 719 , Baltman J neatly summarized the principlesgoverning the editing of statements. They are (at para 8):

(1) The trial judge has the discretion to edit statements which include irrelevant or prejudicial evidence against a co-accused;

(2) Even where evidence has probative value it may be edited out if its prejudicial effect is greater;

(3) However, such edits must not change the meaning of the statement in a material manner, either by removing something oflegitimate value to the Crown in its case against the declarant or by removing something of exculpatory value to the declarant; and

(4) In deciding whether to edit a statement to protect a co-accused, the Trial Judge must bear in mind that the jury will be instructed on the proper use of the statement and that we expect jurors to follow such instructions. [ 62 ] In the circumstances of this case, it goes too far to say that all of the information supporting Brincheski’s position regarding the reliability of A. Brincheski’s statement should have been entered as evidence. The trial judge had to balance the rights of both accused.

I agree with the Crown that introducing unnecessary prejudicial evidence about Tymchyshyn simply to give Brincheski full access to the statement would have “tilted the scale too much in one’s favour at the other’s expense.” [ 63 ] The trial judge was alive to the fact that Brincheski wished to diminish the ultimate reliability of A. Brincheski’s statement to the police. However, she determined that there was sufficient material upon which he could do so without prejudicing Tymchyshyn. I am not persuaded that she erred in that decision.

The Motion for Severance [ 64 ] During the trial, Tymchyshyn filed a severance motion in response to Brincheski’s request to cross-examine the Hallsons regarding bad-character evidence. A review of Tymchyshyn’s counsel’s submissions in response to the request shows that it was unclear whether she was opposing the admission of the bad-character evidence, advancing her argument for severance, or both: [TYMCHYSHYN’S COUNSEL]: . . . I want to state on the record, though, that if at any point in time this bad character evidence that’s extrinsic, extrinsic to this case is allowed in against Mr.

Tymchyshyn because I have a co-accused doing a cut-throat defence, he needs to be severed, and I’m getting extremely concerned about this proposal that at the end of -- after, say, [Brincheski] testifies, Mr. Tymchyshyn’s case is closed, and he can’t even answer what’s going to come. . . . We’ve got a jury, you tell me -- I mean, I’m sure Your Ladyship will do the best instruction on the planet, but at the end of the day severance is a huge issue if any of this comes up because of the Hallsons, because of [A. Brincheski’s] statement and because of this cut- throat defence.

It’s not just a cut-throat defence, it’s getting very, very unfair, or it has the potential to. And that’s why I’m concerned about this piecemeal approach to it because at the end of the day, my client won’t get a fair trial if this, if this unfolds the way it is right now.

THE COURT: But, but we’re putting the cart before the horse, so -- [TYMCHYSHYN’S COUNSEL]: Well, I know, and you keep saying that, but I’m getting very worried because once it’s all out of the bag, what do we do if we go piecemeal by piecemeal? [ 65 ] Tymchyshyn argues that the trial judge erred in dismissing his motion because the manner in which the trial unfolded resulted in an injustice to him.

He contends that the decision of the trial judge to deal with issues concerning bad character as they arose, as opposed to looking at the overall reality of the case, resulted in him being confronted with highly prejudicial bad-character evidence when he was cross-examined that could not be cured by a jury instruction. [ 66 ] The Crown contends that, while counsel, on several occasions, threatened to proceed with or renew her severance motion, this was never done and it is not clear when Tymchyshyn proposed that the trial judge ought to have ordered severance. [ 67 ] The transcript is confusing and it is not clear if the severance motion ever proceeded.

For the purpose of these reasons, however, I will assume that, when the trial judge stated that considering the severance motion before ruling on the admissibility of the prejudicial effect of the bad-character evidence from the Hallsons would be “putting the cart before the horse,” she was, in effect, ruling that the severance motion was premature and she was dismissing it.

Other than the comments that I have earlier reproduced, the motion to sever was not raised again during the trial. [ 68 ] In R v Last , 2009 SCC 45 , [2009] 3 SCR 146 , Deschamps J explained the standard of review with respect to whether to join or sever counts pursuant to section 591(3) of the Criminal Code (the Code ) (at para 21): Since the trial judge enjoys a broad discretion in deciding whether to sever or not, a reviewing court should only intervene on the ground of unjudicial ruling if the judge erred on a question of law or made an unreasonable decision. [ 69 ] She also summarized the factors to be considered by a court in determining a request for severance (at para 18):

Factors courts rightly use include: the general prejudice to the accused; the legal and factual nexus between the counts; the complexityof the evidence; whether the accused intends to testify on one count but not another; the possibility of inconsistent verdicts; the desire toavoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to becalled; the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and the existence ofantagonistic defences as between co-accused persons. [70] Also see R v Blacklaws, 2013 SCC 8, [2013] 1 SCR 403, adopting the minority reasons of Finch CJBC, 2012 BCCA217 at para 27ff, 322 BCAC 107. [71] In Suzack, Doherty JA specifically commented on the importance of having joint trials in circumstances where a cut-throat defence arises (at paras 87-88): I begin with the proposition that persons accused of the joint commission of a crime should be tried together.

That presumption applieswith particular force where the co-accused are each alleging that the other is the guilty party: R. v. Creighton (D.J.) and Crawford(C.), (SCC), [1995] 1 S.C.R. 858; 179 N.R. 161; 81 O.A.C. 359; 96 C.C.C. (3d) 481, at p. 497. Separate trials where co-accused are blaming each other for the crime raise not only the danger of inconsistent verdicts, but also a realconcern that the truth will not be discovered at either trial.

It is axiomatic that the truth of an allegation is best tested through a processwhich requires the accuser to confront the accused with the allegation and gives the accused a chance to respond to the allegation. If co-accused who are blaming each other for a crime are allowed to do so in separate trials, neither jury will have the benefit of that process.

If the accused are tried separately, it is highly unlikely that either jury will hear the complete story. [72] A consideration of the Last factors in light of the Suzack case shows that the trial judge’s decision to dismiss the motionfor severence was justified on the basis that there was a very real factual and legal nexus between the charges, a risk of inconsistentverdicts and that it was desirable to avoid a multiplicity of proceedings where, for the most part, the same evidence would be called. Inmy view, the trial judge’s decision to deny severance was not unreasonable and did not result in an injustice.

Thus, her decision isentitled to deference. The Motion for a Mistrial [73] In order to determine the issue of whether the trial judge erred in denying the motion for a mistrial, it is important togive the matter context. The motion occurred immediately after the trial judge determined that Brincheski’s counsel could cross-examine Tymchyshyn regarding the bad-character evidence of the Hallsons and Tymchyshyn’s ex-girlfriend.

The following exchangeoccurred: THE COURT: I am going to allow the cross-examination and I will do a mid-trial with respect to evidence of disposition going to[Brincheski’s] innocence, potentially, but not to be used against Mr. Tymchyshyn. [TYMCHYSHYN’S COUNSEL]: And if I can just say, My Lady, the fact that Mr. Tymchyshyn made a comment about [thedeceased’s] character, the deceased, not about Mr. Brincheski allows this [Tymchyshyn’s ex-girlfriend], which is – it’s so prejudicial. THE COURT: Well, I appreciate that but I’m – I’ve got assurances that we’re going to have a different version from Mr.

Brincheski andhe’s going to testify, and given that I’m going to allow it to be put, at this point, to Mr. Tymchyshyn as part of Mr. Brincheski’s position. [TYMCHYSHYN’S COUNSEL]: And I am going to be making a motion for a mistrial. He can’t get a fair trial if this is the ending ofhis examination. THE COURT: Are you making that now? [TYMCHYSHYN’S COUNSEL]: I am. THE COURT: I’m denying that.

[74] Tymchyshyn argues that the ruling allowing Brincheski’s counsel to cross-examine him on bad-character evidencecaused him significant prejudice such that he was unable to obtain a fair trial. He also argues that the trial judge erred by failing to givereasons for her decision. [75] The Crown acknowledges that, while a one-line decision would normally raise questions about the judge’s reasoningprocess, the manner in which the motion unfolded shows that it was really the result of his disagreement with the trial judge’s rulingconcerning the bad-character evidence.

I agree. [76] In this case, the transcript evidences that the motion was made as a result of the unfavourable ruling. There was noformal motion filed with the Court, no significant argument was made and no authorities advanced. It is likewise obvious from thetranscript that the trial judge denied his motion for a mistrial for the same reasons as she allowed Tymchyshyn to be cross-examined onthe bad-character evidence. I have already reviewed why I would not interfere with her decision in this regard. [77] I am not convinced that the trial judge made a reversible error in fact or law.

Thus, her discretionary decision is oweddeference and I would not interfere with it (see R v Henderson (WE), 2012 MBCA 93 at para 98, 284 ManR (2d) 164). Inadequate Jury Instruction [78] In her closing statement to the jury, Brincheski’s counsel misrepresented as factual, bad-character evidence to whichTymchyshyn did not agree in cross-examination and that was not otherwise in evidence.

Among the statements that were wrongly put tothe jury as factual were allegations that he beat his ex-girlfriend unconscious with a steel-toed boot, that he threatened to shoot herexecution style and that he threatened to kill her friend and her friend’s baby.

Additionally, Brincheski’s counsel referred the jury toother witness statements which were not part of the evidence, and with which Tymchyshyn disagreed, saying that they provided a basisfor finding Tymchyshyn to be a liar. [79] Tymchyshyn maintains that the trial judge should have clearly identified each of the statements made by Brincheski’scounsel that were not part of the evidence. Correspondingly, he argues that the trial judge should have instructed the jury regarding theuse to be made of the suggestions that were made to Tymchyshyn but were not adopted by him.

Overall, his position is that the trialjudge did not sufficiently address the issue of the misstatements concerning his bad character in her final instructions to the jury. [80] The Crown observes that Tymchyshyn’s trial counsel approved the instructions regarding the misstatements made byBrincheski’s counsel and recognized that highlighting every misstatement to the jury was dangerous.

In essence, the Crown states thatTymchyshyn’s counsel made a legitimate tactical decision to downplay the misstatements and that taking a different position on appealis “unpersuasive”. [81] The standard of review of a jury charge for adequacy was summarized by Marc Monnin JA in R v Monkman (GS) et al,2012 MBCA 87, 288 ManR (2d) 1 (at para 39): As to the jury charge, assuming that the judge is applying the appropriate legal principles, an appellate court is to review the charge, notto a degree of perfection, but only to assess whether it had the effect of instructing the jury as to what was expected of them. [82] As I earlier stated, the decision of a trial judge as to whether a proper jury instruction can cure a potential prejudice is,absent error in law or fact, entitled to deference. [83] I start by noting that counsel are not unrestrained in the submissions that they are permitted to make to a jury.

InCriminal Pleadings and Practice in Canada, Ewaschuk observes (at p 17-49): Crown and defence counsel are limited in their jury addresses to reviewing and commenting on the evidence and making submissionsthat are properly supported by the evidence adduced. Counsel must be accurate and dispassionate, may not advert in their jury addressesto any “unproven facts” and may not put to the jury assertions for which there is no evidence or which come from counsel’s personalobservations or experiences. Thus, a closing jury address is restricted to counsel’s

interpretation of the evidence. R. v. Rose, (SCC), [1998] 3 S.C.R. 262, at paras. 104 and 107. [84] Should inappropriate submissions be made, the trial judge is obliged to cure the prejudicial effect of any errors orinaccuracies. This duty may arise regardless of whether defense counsel fails to object, or even supports, an erroneous instruction (see Rv AT, 2015 ONCA 65 at paras 29-30, 330 OAC 360, regarding improper comments made by Crown counsel).

One way of curing theprejudicial effect of such submissions is by drawing the jurors’ attention to the misstatements and emphasizing that they do not constituteevidence. In the “clearest cases of unfairness”, where the trial judge is not satisfied that curative instructions are sufficient to remedy thedamage, the prejudiced party may be granted a limited opportunity to reply.

See R v Rose, (SCC), [1998] 3 SCR 262 atparas 124-36; and Kociuk at para 64. [85] As earlier stated, in her closing submission, Brincheski’s counsel asked the jury to draw inferences regardingTymchyshyn’s bad character and credibility by referring to witness statements that were not in evidence and that were denied by

Tymchyshyn. [ 86 ] Prior to charging the jury, the trial judge gave a copy of her proposed instructions to counsel. In dealing with the case against Brincheski, the trial judge summarized the bad-character evidence and reminded the jury that it was only to be used to determine whether or not it raised a reasonable doubt as to his guilt. She also reminded the jury that it was impermissible to use this evidence in determining the guilt of Tymchyshyn. With regard to the misstatements made by Brincheski’s counsel, the following exchange occurred: [TYMCHYSHYN’S COUNSEL]: I’m going to page 66, if I can, My Lady.

And this deals with [Brincheski’s counsel’s] close. THE COURT: You know what, I, I -- [TYMCHYSHYN’S COUNSEL] : I like the way Your Ladyship did it. THE COURT: Yeah. [TYMCHYSHYN’S COUNSEL] : I did because I thought you, you, you softened it. THE COURT: I tried to down play it and I, and I don’t know that they’re going to necessarily -- [TYMCHYSHYN’S COUNSEL] : Remember. . . . THE COURT: Well, I, I think all of the -- I mean I think they’re getting the flavour as opposed to the details and I thought particularly -- I, I put, as you can see, more when I was dealing with Mr.

Brincheski’s part because it’s, it’s relevant for his position but I thought that for Mr. Tymchyshyn the best thing was just to, just to downplay it. . . . [TYMCHYSHYN’S COUNSEL] : Well, and I agree with you and as I said, I said to [co-counsel] I think it’s softened enough that it might take it away.

And maybe the only thing I can ask that Your Ladyship [does] because of the things that were said in the close that were not evidence, is perhaps repeat that if a question is asked and not agreed to it’s not evidence because I don’t want to flag it but at the same time if any of them remember that the, the kicking to unconsciousness with the steel toed boot, the, the threatening to kill the baby, I mean what if they do remember it and nothing is said. [emphasis added] [ 87 ] In the general instructions portion of her charge the trial judge stated that only what a witness said in answer to a question was evidence and that questions asked were not evidence unless the witness agreed that what was asked was correct.

She emphasized that what was said by the lawyers during the trial was not evidence. [ 88 ] During a break in the instructions to the jury, Tymchyshyn’s counsel returned to the issue of the misstatements. [TYMCHYSHYN’S COUNSEL]: My Lady, if I could just bring something to your attention. I’ve been thinking long and hard about the misstating of the evidence by [Brincheski’s counsel] in her closing and it’s concerning me. I noticed on page 67 that you added that comment again if they don’t accept the suggestion. . . .

[TYMCHYSHYN’S COUNSEL]: The paragraph before is about all the propensity evidence from the Hallsons and his relationship with[Tymchyshyn’s ex-girlfriend] and you’ve added, “And bear in mind that suggestions put to a witness that are not accepted are notevidence.” I really think we have to have something that it was misstated by [Brincheski’s counsel] in her closing because it was and wecan’t leave it.

And what I was going to suggest is some suggestions made by [Brincheski’s counsel] in her closing argument were notadopted by [Tymchyshyn], without going into any detail. [emphasis added] [89] When she resumed her instructions to the jury, the trial judge discussed Brincheski’s defence based on Tymchyshyn’spropensity for violence. After alluding to the evidence, the trial judge stated: And bear in mind that suggestions put to a witness that are not accepted are not evidence.

Some suggestions made by [Brincheski’scounsel] in her closing were not adopted by [Tymchyshyn]. [emphasis added] [90] In my view, the above statement directly dealt with the issue raised by Tymchyshyn. To draw attention to the allegedacts of violence and hearsay statements of other persons who contradicted Tymchyshyn’s evidence could have had the effect of furtheremphasizing these issues for the jury. Even worse, it could have led them to reconsider and compare the misstatements with the threats,acts of violence and contradictions that were admitted by Tymchyshyn and properly in evidence.

Thus, the decision by Tymchyshyn’scounsel not to press the issue of having each and every misstatement brought to the attention of the jury was tactical, rational anddefensible. [91] Viewed as a whole, the charge given to the jury had the effect of instructing the jury as to what was expected of them. Isee no legal error in the manner in which the trial judge chose to deal with the misstatements. She exercised her discretion reasonablyand is entitled to deference.

In the result, I would not accede to this ground of appeal. [92] However, if I am wrong, and the trial judge did commit a legal error by failing to correct each of the misstatements byBrincheski’s counsel, I would rely on the following passage in R v Kostyk (F), 2014 ONCA 447, 321 OAC 256, with respect to thecurative proviso (at para 42): In R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 97, leave to appeal refused, [2010] S.C.C.A.

No. 263, Doherty J.A. re-affirmed that counsel’s position at trial is not determinative when a misdirection or non-direction is raised as a ground of appeal; “[a]legal error remains a legal error even if counsel does not object or even supports the erroneous instruction”. Nonetheless, demonstratinga legal error is not the end of the inquiry in terms of setting aside a conviction on appeal where defence counsel has taken a contraryposition at trial. Trial counsel’s position is relevant in considering the curative proviso: R. v. Austin (2006), (ONCA), 214 C.C.C. (3d) 38, at para. 15 (Ont. C.A.); and R. v.

Chambers, (SCC), [1990] 2 S.C.R. 1293, at pp. 1308-1309.As Doherty J.A. correctly pointed out in Austin, at para. 14, “[a]rguments by appellate counsel that fly in the face of positions taken bycounsel at trial quite properly attract judicial scepticism and resistance”. This is all the more the case where it appears that trial counsel’sposition reflects a calculated tactical decision: R. v.

Lomage (1991), (ON CA), 2 O.R. (3d) 621, per Finlayson J.A., atpp. 629-30 (C.A.). [93] In this case, trial counsel made a calculated, tactical decision that is different from the position now taken on appeal. [94] The evidence against Tymchyshyn was strong. It included evidence that he was the last person to be seen with thedeceased, forensic evidence tying the murder to his garage, incriminating comments made by him to the Hallsons, and cell phone recordsconsistent with the theory that he and Brincheski planned and worked together to kill the deceased. There was also other significantcircumstantial evidence.

In light of the substantial incriminatory evidence presented in this case, I would apply the curative provisofound in section 686(1)(b)(iii) of the Code and uphold the verdict. See R v Sarrazin, 2011 SCC 54 at paras 22-28, [2011] 3 SCR 505). Conclusion and Decision [95] All of the grounds of appeal raised by the accused result from the fact that they were jointly tried.

While an accusedperson may not receive exactly the same trial when tried with a co-accused, it is also important to remember that the truth-seekingfunction is best served when the jury has before them all of the evidence to be tested in the adversarial process. In what was a dynamicand fluid process, the trial judge carefully and fairly balanced the rights of each accused on each of the issues raised. She made no errorsin law and her rulings did not result in an injustice or unfair trial for either of the accused. [96] I would dismiss the appeals.

JA I agree: JA I agree: JA