R. v. Muise, 2013 NSCA 81

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Muise , 2013 NSCA 81 Date: 20130704 Docket: CAC 370204 Registry: Halifax Between: Cody Alexander Muise Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice M. Jill Hamilton Appeal Heard: January 17, 2013, in Halifax, Nova Scotia Subject: Criminal Law; Leading Questions During Direct Examination

Summary: Mr. Muise appealed his conviction for robbery on the basis the trial judge drew an inference of fact that cannot withstand logical scrutiny and permitted the Crown to cross-examine its own witness, for the purpose of contradicting or discrediting him, without first seeking leave from the judge to do so pursuant to s. 9(2) of the Canada Evidence Act , RSC, 1985, c. C-5. Issue: Did the trial judge err? Result: Appeal dismissed. While the judge made a palpable error by drawing an inference that Mr.

Muise knew a gun would be used in the robbery, it was not an overriding error because it had no effect on the verdict. The judge did not err in allowing the direct examination to proceed as it did, with leading questions directed at refreshing the witness ’ memory of evidence previously given by him in case his memory would permit him to adopt what he said in those earlier depositions. Had the direct examination been improper, the curative provision, s.686(1)(b)(iii) of the Criminal Code , R.S.C., 1985 c. C-46., would have applied. This information sheet does not form part of the court ’ s judgment.

Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 17 pages.

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Muise , 2013 NSCA 81 Date: 20130704 Docket: CAC 370204 Registry: Halifax Between: Cody Alexander Muise Appellant v. Her Majesty the Queen Respondent Judges: Saunders, Hamilton and Bryson, JJ.A. Appeal Heard: January 17, 2013, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of Hamilton, J.A.; Saunders and Bryson, JJ.A. concurring. Counsel: Roger Burrill, for the appellant Kenneth W. F. Fiske, Q.C., for the respondent

Reasons for judgment : [ 1 ] The appellant, Cody Alexander Muise, appeals three convictions entered against him by Provincial Court Judge William B. Digby on June 22, 2011 and August 15, 2011, but focusses on his conviction for robbery (s. 344). He does not pursue his appeal from sentence. Facts [ 2 ] The trial judge nicely outlined the background in his unreported oral decision: The facts in this particular case, as I see them, are as follows. Ms. MacDonald and Mr. Brooks were friends or acquaintances, possibly with a business relationship. On the day in question, that is December 13th, 2010, Ms.

MacDonald and Mr. Brooks got together. During that time, Ms. MacDonald parted company with her wallet. She was under the belief that Mr. Brooks was responsible for her loss of the wallet. She made her view known to Mr. Brooks, who protested that he did not take her wallet. He went to the extent of emptying out his pockets in an attempt to convince her that he did not have [her] wallet. He was unsuccessful in his efforts to persuade her that he did not have [her] wallet. The two parted company. Later that day, Ms. MacDonald called Mr. Brooks and invited him to her residence.

Her residence was, in fact, her parents’ home. Her parents were away in Cape Breton. She suggested that if he came over, they could use the hot tub. Mr. Brooks was persuaded by that offer to attend at Ms. MacDonald’s home at 24 Jackladder Drive in Lower Sackville, Province of Nova Scotia. He came to the door, entered the residence, and was in process of taking off his shoes, where he was accosted by three males. He was threatened with a firearm, or what appeared to him to be a firearm; a pistol. He was struck with the pistol. He was also struck with blows from hands.

He was forced to go out to his car and get certain property from his car. Along with the items in the house, or that were taken from him in the house, were his GPS, his cell phone, a set of brass knuckles, a ring, a watch, money, and I may have forgotten one other item. He was also struck with the brass knuckles by the party present. He said that during the course of this event, Candace MacDonald, who was present for the whole time, indicated to the three males that that was enough. At some point, the three males, having relieved Mr. Brooks of his property, let him go. It was made clear to Mr.

Brooks that this was in retribution for him having taken Ms. MacDonald’s wallet earlier in the day. I suspect, much to the surprise of the three males, Mr. Brooks called the police. I suspect that if, in fact, there was a business relationship involving substances whose use was controlled under the Controlled Drugs and Substances Act , that that would provide a reason for those individuals to think that Mr. Brooks would be unlikely to approach the police. He did. As a result of information given to the police, the police were very quick and efficient.

In approximately the time it would take to drive normally from Jackladder Drive to the exit from the Bicentennial Drive onto Armview Drive, the police were set up at that exit. They were aware of the make of the vehicle. They were looking for the licence plate number and the fact that there would likely be a firearm in it and a number of persons in the car, the fact that the car was Candace MacDonald’s vehicle or her family vehicle. Numbers of police units surrounded the vehicle, did a high-risk takedown. That effectively means they surround the vehicle. They have their guns drawn.

The occupants are ordered out of the vehicle according to a very set procedure. They’re taken out one at a time. They were placed in separate police vehicles and taken to the station. Not surprisingly, found in the vehicle were items which were identified by Mr. Brooks as his property, that being the ring, the cell phone, the GPS. The police also discovered, hidden under the backseats of the Mazda Protege, a firearm. The firearm didn’t have a round in the chamber, but it had a loaded clip in it. The seating arrangement in the vehicle was such that Ms. MacDonald was the driver, Mr. Munroe was the front passenger.

In the rear on the right was [KM], and on the rear on the left was the accused, Cody Muise. The firearm was found halfway between the center-point and the door on the right-hand side, or passenger side, under the seat cushion. That would be a position where it would normally be out of sight, and the police found it in part because they made a concentrated effort to search the vehicle and look for that item.

The police also found at the scene, on the pavement some 20 feet to the rear of Ms. MacDonald’s vehicle after all the accused had been removed from the scene, a bullet, which was the same size and caliber as would fit the pistol, or firearm, that was found under the seat. The police also found at some later time in the van in which Mr. Muise was transported to the police station a bullet of similar size and caliber.

Police evidence was that that vehicle, being one of the wagons, had been searched by the officers who took it out at the start of their shift that morning and that no one had been in the back of the vehicle. It was obviously a slow day for at least those two officers. After Mr. Muise, and before anyone else was arrested and placed in that vehicle, the round was found. The obvious inference is that the only way it could have gotten there was that Mr. Muise had placed the bullet there. I find as a fact from those circumstances that Mr. Muise placed the bullet there. In addition, on Mr.

Muise’s person the police found a Canadian Tire receipt for gun oil dated just that same day with a transaction time just before noon. One certainly would not think that for an imitation firearm one would need gun oil. [ 3 ] The judge found Ms. MacDonald sought help from one or more of Mr. Muise, Mr. Munroe and KM to retrieve her wallet from Mr. Brooks. He then commented on the testimony of KM. He noted KM pled guilty to the robbery as a young offender and that he was reluctant to testify at Mr. Muise ’ s trial. KM had been subpoenaed to attend Mr.

Muise ’ s trial on two occasions, failed to appear and was arrested. At Mr. Muise ’ s trial, he initially refused to take the witness stand when called, was taken to the cells for a short period of time, asked to speak with a lawyer and went back to the cells for two hours before he finally testified. [ 4 ] The judge stated: ...[KM] initially testified that he was the only male there; that there were no other males there.

When shown previous statements made by himself, he eventually agreed that while, yes, there were three of them there, he said he knew the two other persons but he wasn’t prepared to say who they were. He did say that one of them wasn’t Mr. Muise and the other one wasn’t Mr. Munroe. To be brief, I don’t believe him when he says they weren’t Mr. Muise and Mr. Munroe. [KM] indicated that he, Mr. Muise, and Mr. Munroe were friends, that they spent a lot of time together. He accounted for the fact that Mr. Muise and [Mr.

Munroe] were in the vehicle by saying they dropped off these other two known persons whose identity he wasn’t prepared to reveal and then picked up Mr. Muise and [KM] in Fairview. It appeared that he wasn’t able to remember that he said that, because on another occasion which he agreed with when he testified in another proceeding, he had said that he, Mr. Muise, and Mr. Munroe had been picked up in Sackville. Well, the robbery took place in Sackville. Mr. Brooks was unable to make a court identification of Mr. Muise.

He did, however, give a description of the three individuals which, in a very general sense, matched the three individuals in the car. Oddly enough, Mr. Munroe was in possession of some of the property taken from Mr. Brooks when he was taken out of the vehicle, that is, Ms. MacDonald’s Protege. [KM] attempted to explain that by saying, well, he was sharing his portion of the loot with his friends. I don’t accept that

interpretation. I have no doubt that he was sharing the proceeds of their efforts with Mr. Muise and Mr. Munroe because all three were involved. I find that Mr. Muise was there at the house, that he actively participated in the robbery, and that because of the presence on his person of the receipt for gun oil, that he well knew that a firearm was taken, thereby in the physical possession of one of the three, but certainly with the knowledge and consent of Mr. Muise and that it would be used in the robbery. I find him guilty of the offence of robbery. Issues [ 5 ] Mr.

Muise argues that the judge erred (1) by drawing an inference of fact regarding his prior knowledge that a gun would be used in the robbery that cannot withstand “ logical scrutiny ” and (2) by permitting the Crown to cross- examine KM, its own witness, for the purpose of contradicting or discrediting him, not for the purpose of refreshing his memory, without seeking leave from the judge to do so pursuant to s. 9(2) of the Canada Evidence Act , R.S.C., 1985, c. C-5.

Standard of Review [ 6 ] I agree with the parties that the standard of review is as set out by this Court in R. v. Henderson , 2012 NSCA 53 : [17] The standard of appellate review on a question of law is correctness. Factual issues are reviewed for any palpable and overriding error. A trial judge’s application of the law to the facts is reviewed as a question of fact unless an extricable error of law is identified. See for example, R. v.

C.J. , 2011 NSCA 77 . [18] The standard of review of verdicts based on circumstantial evidence is whether a properly instructed jury, acting judicially, could have reasonably concluded that the guilt of the accused is the only rational conclusion to be reached from the whole of the evidence. Within such an inquiry, the standard of review for error is correctness. The standard of review of possible inferences that may be drawn from the evidence is palpable and overriding error. See, for example, R. v. Shea , 2011 NSCA 107 . Analysis First Argument [ 7 ] Mr.

Muise ’ s first argument is that the judge erred by drawing an inference of fact that cannot withstand “ logical scrutiny ” . The standard of review for such an inference is palpable and overriding error. The inference Mr. Muise challenges is the judge ’ s finding that he knew in advance that a gun was going to be used in the robbery because of a Canadian Tire receipt for gun oil found on his person following the take down. He points to two passages from the judge ’ s decision in support of his argument: In addition, on Mr.

Muise’s person the police found a Canadian Tire receipt for gun oil dated just that same day with a transaction time just before noon. One certainly would not think that for an imitation firearm one would need gun oil. ... I find that Mr. Muise was there at the house, that he actively participated in the robbery, and that because of the presence on his person of the receipt for gun oil, that he well knew that a firearm was taken, thereby in the physical possession of one of the three, but certainly with the knowledge and consent of Mr. Muise and that it would be used in the robbery.

I find him guilty of the offence of robbery. [ 8 ] The Crown concedes that the appellant ’ s possession of this receipt, indicating the purchase of gun oil approximately three hours prior to Ms. MacDonald ’ s loss of her wallet, does not logically lead to the conclusion that Mr. Muise knew in advance that a firearm would be used in the course of robbing Mr. Brooks. It argues, however, that this particular finding by the judge had no effect on the verdict. [ 9 ] I agree with both parties that the possession by Mr. Muise of the gun oil receipt does not logically lead to the judge ’ s inference that Mr.

Muise knew in advance that a gun would be used in the robbery. The receipt indicates the gun oil was bought before Ms. MacDonald lost her wallet, the event the judge found set the robbery in motion. Accordingly, the judge made a palpable error in making such an inference. [ 10 ] However, I agree with the Crown, that this inference had no effect on the verdict. The judge had already found Mr. Muise was one of three males who participated in the robbery before he considered the gun oil receipt. The robbery charge against Mr. Muise did not particularize the use of a firearm. Mr.

Muise ’ s prior knowledge that a gun would be used in connection with the robbery was not an essential element of the robbery charge against him, although it may have been relevant in sentencing.

[11] The main issue at trial was whether Mr. Muise was one of three males who robbed Mr. Brooks. Mr.Brooks could not identify him. The circumstantial evidence supporting the judge’s finding that Mr. Muise was one of the three robberswas strong as outlined in the Crown’s factum: 42. Brooks was robbed at gunpoint of articles of personal property in the house at 24 Jackladder Drive in Lower Sackville on the eveningof December 13, 2010. Candace MacDonald was present. Brooks said three males robbed him, and MacDonald’s police statementconfirmed his testimony.

The three males appeared to know each other, and there was some indication they were from Spryfield. Brooks described the three as similar to him in height and weight; that one had dark hair, one blond hair, and one red hair. One had atattoo on his forearm. Brooks said that, when he left the house, he called the police “right away”. [KM] said he and Candace MacDonaldleft the house about five minutes after Brooks’ departure. The “911” call from Brooks was received at 9:43 p.m. 43. The suspect vehicle was observed inbound on Highway 102. The car took the exit ramp to Northwest Arm Drive.

This observationoccurred between 10:00 and 10:04 p.m. The police followed the vehicle, a Mazda Protégé linked to Candace MacDonald, for one to twominutes before it was brought to a stop. In the suspect vehicle were Candace MacDonald, [KM], Matthew Munroe, and the appellant. The vehicle is a compact car. MacDonald and Munroe occupied the front seats with the appellant and [KM] in the rear seat. MacDonaldhad a bottle of pills taken from Brooks. Munroe was wearing a ring taken from Brooks. [KM] had brass knuckles taken from Brooks,and Brooks’ watch was found on the floormat where [KM] had been seated.

Both the appellant and Munroe had not insignificantamounts of cash on them. Found on the floormat where the appellant had been seated was Brooks’ GPS unit. A gun, identified by [KM]as the one used during the robbery, was found under the back seat in the area where [KM] had been seated. A bullet was found in thepaddy wagon used to transport the appellant to police headquarters, and a bullet was found on the pavement near the suspect vehicle afterthe four individuals had been removed from the scene. Both bullets fit the gun.

The car was stopped heading in the direction ofSpryfield, and [KM] testified he lives in Spryfield. The appellant has brown hair, Munroe has blond hair, and [KM] has red hair. Allthree were approximately of the same height and weight. Both the appellant and [KM] had tattoos on their arms. 44. Cst. Smith testified that, on the day of the trial, he drove from 24 Jackladder Drive to Highway 102 to Northwest Arm Drive andWalter Havill Drive, near the spot where the suspect vehicle had been stopped.

It took the officer 18 minutes and 39 seconds to coverthe distance, although he exceeded the speed limit on Highway 102 because he was late for court. The respondent submits this and otherevidence eliminates any stop in Fairview on the evening in question. [KM] testified it took about 10 to 15 minutes each way from thehighway into Fairview and back. This detour was simply not possible, given the timelines established in the evidence. [12] This circumstantial evidence meets the test laid down by this Court in R. v.

Barrett, 2004 NSCA 38, atpara. 19, with respect to a verdict based on circumstantial evidence: [19] 1 would conclude that while the test for whether a verdict is reasonable is the same in all cases, where the Crown’s case isentirely circumstantial, the reasonableness of the verdict must be assessed in light of the requirement that circumstantial evidence beconsistent with guilt and inconsistent with innocence: see Yebes at page 185 where this formulation was said to be the equivalent of therequirement that the circumstantial evidence be inconsistent with any rational conclusion other than guilt.

This was summed up by Low,J.A. in R. v. Dhillon (2001), 2001 BCCA 555 , 158 C.C.C. (3d) 353 (B.C.C.A.). At para 102, he stated that where the Crown’scase is entirely circumstantial, the appellate court applying the unreasonable verdict test must determine “... whether a properlyinstructed jury, acting judicially, could have reasonably concluded that the only rational conclusion to be reached from the whole of theevidence is that the appellant...” was guilty. [13] I am satisfied the judge’s error in inferring from the gun oil receipt that Mr.

Muise knew that a gunwould be used in the robbery was not an overriding error as it did not affect his verdict. I would dismiss this ground of appeal. Second argument [14] Mr. Muise’s second argument is that the judge erred by permitting the Crown to cross-examine its ownwitness, KM, for the purpose of contradicting or discrediting him, not for the purpose of refreshing his memory, without seeking leavefrom the judge to do so pursuant to s. 9(2) of the Act.

[ 15 ] By the time KM testified at Mr. Muise ’ s trial, he had pled guilty as a young offender to the robbery of Mr. Brooks and been sentenced. He had also testified at Mr. Munroe ’ s trial for the same robbery. [ 16 ] KM initially testified at Mr. Muise ’ s trial that he was the only male robber at Ms. MacDonald ’ s house and that the reason Messrs. Muise and Munroe were in Ms. MacDonald ’ s car at the time of the takedown was because Ms.

MacDonald had picked them up at an unspecified location in Fairview en route from the scene of the robbery in Sackville to Spryfield. [ 17 ] After KM gave that evidence, Crown counsel asked him if he wanted to refresh his memory by looking at a copy of the transcript of the facts admitted at his sentencing hearing. These facts indicated there were three male robbers, including Mr. Muise and Mr. Munroe, at Ms. MacDonald ’ s house. KM agreed this refreshed his memory. He adopted these facts to the extent of agreeing there were two other male robbers with him at Ms.

MacDonald ’ s house but refused to disclose their names, and denied they were Mr. Muise or Mr. Munroe. [ 18 ] Crown counsel then showed KM a copy of the transcript of the testimony he gave at Mr. Munroe ’ s trial. It revealed that he testified that he, Ms. MacDonald and Messrs. Muise and Munroe drove from Sackville, the location of the robbery, when they were stopped by the police. KM agreed the transcript refreshed his memory and adopted this evidence. [ 19 ] Mr. Muise refers specifically to the following exchanges between Crown counsel and KM during his direct examination in support of his argument.

The first exchange was prior to KM being shown the transcripts of the earlier proceedings. It related to his explanation of where Ms. MacDonald got off the highway in Fairview to pick up Messrs. Muise and Munroe when travelling from the robbery to Spryfield: Q. Okay. Well, I’m going to put to you, there’s only one ramp before that and that’s in Hammonds Plains. A. Okay. Q. So did you get off in Hammonds Plains? A. No, like I said, I don’t remember. I’m not familiar with those roads. Plus I wasn’t really paying attention to where we were going. Q.

Well, do you know the difference between a road that takes you at 100 kilometers an hour as opposed to a road that takes you 70 kilometers an hour? Do you know the difference between those two things? A. Yes. Q. Okay. So which road was it, the 100 kilometer an hour road or the 70 kilometer an hour road? A. I guess 100. Q. 100. All right. Do you know where the movie theatre is in Bayers Lake? A. Yes.

Q. All right. Now maybe that will help you a little bit. Did you get off at the ramp by the movie theatre? A. Yeah. [ 20 ] Crown counsel then showed KM the transcript of the facts agreed to at his sentencing hearing: Q. Okay. So we have a transcript of the facts that were read in. A. Yeah. Q. Okay. Do you want to take a look at those? A. No. Q. Okay, well we’re going to look at them anyways, how does that sound? A. Okay. ... MR. WOODBURN: Start at page 3. You said some things a little differently so I want you to maybe refresh your memory about this. All right, do you want to do that? A. Yeah. ... MR.

WOODBURN : ...Sorry, where was I? Oh sorry, line 13. ... Mr. Brooks advised when he reached the kitchen of the residence, he was punched in the back of the head. Out of nowhere three individuals, Cody Muise, K. M. (which is you) and Matthew Munroe were on him. They grabbed him and sat him down in a chair saying Mr. Brooks had fucked with the wrong person. So those were the facts that your ... your hearing where you included two other individuals which you didn’t include today. Does this help you refresh your memory? A. Yeah.

[ 21 ] As indicated, KM then adopted the fact that there were three male robbers at Ms. MacDonald ’ s house, but would not disclose their names and denied that either Mr. Muise or Mr. Munroe was one of them. [ 22 ] Crown counsel then provided KM with a copy of the transcript of his testimony from Mr. Munroe ’ s trial: Q. I got some more stuff here to refresh your memory, if you want to take a look at it. A. Yeah. Q. Now I’m going to show you a transcript ... well, first, I’m going to identify where we are. Right? Okay, there’s a partial transcript there. This is ... don’t look through it yet.

Look at the front page. There we go. This is a ... a trial that was ... Mr. Matt Munroe’s trial. A. Yes. Q. Okay, do you remember testifying at that on April 8 th ? A. Yeah. ... Q. Okay. Now why don’t we get straight to page 38.... Maybe I ... because I want to ... I want to fully refresh your memory. Page 36. The ... line 22 on page 36. A. Yeah. Q. Down to about line 5 on page 37. We’ll start with that. A. Okay. Q. Okay, you read through that? A. Yeah. Q. Okay. Well we’re going to take that in conjunction with ... let’s go to page 38 starting at line 18. And going over to page 39, line 2. A. Okay.

Q. Thank you. Now does that help refresh your memory about your story that you told us at all? Or your version of the events? A. Yeah. ... Q. All right. So if I can understand from your transcript, if it refreshes your memory, you state that Candace MacDonald, Mr. Muise,Mr. Munroe and yourself were passengers in the vehicle. Is that correct? A. Yes. Q. And you agree on examination that prior to being pulled over all of you had left Sackville. A. Yeah. Q. Okay. Does that refresh your memory? A. Yeah. Q. Okay. Is that what happened? A.

Yes. [23] The law on the use of leading questions during direct examination was reviewed by Charron J. (as shethen was) in R. v. Rose, (ON CA), [2001] O.J. No. 1150 : 9 A leading question is one that suggests the answer. It is trite law that the party who calls a witness is generally not permitted to askthe witness leading questions. The reason for the rule arises from a concern that the witness, who in many instances favours the partywho calls him or her, will readily agree to the suggestions put in the form of a question rather than give his or her own answers to thequestions.

Of course, the degree of concern that may arise from the use of leading questions will depend on the particular circumstances,and the rule is applied with some flexibility. For example, leading questions are routinely asked to elicit a witness’ evidence onpreliminary and non-contentious matters.

This practice is adopted for the sake of expediency and generally gives rise to no concern.Leading questions are also permitted to the extent that they are necessary to direct the witness to a particular matter or field of inquiry.Apart from these specific examples, the trial judge has a general discretion to allow leading questions whenever it is considerednecessary in the interests of justice: Reference Re R. v. Coffin (1956), (SCC), 114 C.C.C. 1 at 22 (S.C.C.). [24] See also Maves v. Grand Trunk Pacific R. Co. (1913), (AB CA), 14 D.L.R. 70,(Alta. S.C., App.

Div.) pp. 76-77. [25] The Supreme Court of Canada held in Reference Re R. v. Coffin (1956), (SCC), 114C.C.C. 1 at 22 (S.C.C.), that a trial judge has discretion to permit leading questions during direct examination whenever it is considerednecessary in the interests of justice. It also held that a witness may refresh his or her memory by reference to his or her earlier depositionsand that s. 9 of the Canada Evidence Act applies only when such refreshing is attempted to discredit or contradict a party’s own witness.Kellock J. wrote:

It is quite true that the initial answers made by the witness as to these three matters were not “accepted” by counsel for the Crown butwhile, as a general rule, a party may not either in direct or re-examination put leading questions, the court has a discretion, not open toreview, to relax it whenever it is considered necessary in the interests of justice, as the learned judge appears to have considered was thesituation in the case at bar; ex parte Bottomley [[1909] 2 K.B. 14 at 21-23.]; Lawder v. Lawder [(1885) 5 Ir. C.L.R. 27 at 38.].

Moreover,the authorities make it clear that a witness may be allowed to refresh his memory by reference to his earlier depositions and that it is onlywhere the object of the examination is to discredit or contradict a party’s own witness that s. 9 of the Canada Evidence Act applies.

In thepresent case it is evident that the object was to show that the mention by the appellant to the police of having left the Lindsay party in thecompany of two other persons was an afterthought which had not occurred to him when he gave his earlier account to the witness Petrie.Counsel did not wish, therefore, to discredit Petrie but to obtain from her the evidence she had given in her depositions if, on bringing thedepositions to her attention, her memory would permit her to adopt them. In Reg. v.

Williams [(1853) 6 Cox C.C. 343.], a witness for the prosecution, having replied in the negative to a question put to him, waspermitted by Vaughan Williams J., to have his depositions put into his hands, and, after having looked at them, to answer the question.Similarly, in Melhuish v. Collier [(1850) 19 L.J. Q.B. 493.], a witness for the plaintiff was asked by the plaintiff’s counsel as to whetheror not she had not made a certain answer in previous proceedings before the magistrate.

The question being objected to on the groundthat it went to discredit the party’s own witness, the learned trial judge ruled that the question was a proper one. Upon a rule nisi for anew trial, the rule was discharged. At p. 496, Coleridge J., said: A witness from flurry or forgetfulness may omit facts and on being reminded may carry his recollection back so as to be able to give hisevidence fully and correctly, and a question for that purpose may properly be put.

As to the difference between a question directed to refreshing memory and contradicting one’s own witness, the learned judge continued: But as to the first point it is objected that the object of the question put here was to contradict and not to remind a witness and thattherefore it could not be put. It is certainly very difficult to draw the line of distinction in practice and I am not now disposed to do it. Inthe present case I do not think the question objected to went further than was proper ... See also The King v. Laurin [(1902) (QC CQ), 6 C.C.C. 135.], distinguishing R. v.

Duckworth [(1916) (ON CA), 37 O.L.R. 197]. [26] In this case, the judge and defence counsel were alive to the issue of leading questions. Both raisedobjections to certain questions of Crown counsel on this basis. [27] Considering the whole of the evidence that was before the judge, especially the whole of KM’stestimony, I am satisfied the judge did not err in exercising his discretion to allow the Crown’s direct examination of KM to proceed as itdid with some leading questions. A reasonable

interpretation of Crown counsel’s questioning of KM is that the reason he drew KM’sattention to the excerpts from the transcripts of his sentencing in Youth Court and his testimony at Mr. Munroe’s trial, was to obtain fromKM evidence he had given in his prior depositions should his memory permit him to adopt what he had said in those depositions. Few ofthe questions Crown counsel asked KM were leading in nature. As argued by the Crown, what transpired in this case is more akin to thesituation in Coffin, rather than what occurred in Rose.

Crown counsel did not cross the line from controlled examination of KM intocross-examination for the purpose of discrediting or contradicting him: R. v. Situ, 2005 ABCA 275, para. 12. [28] I am also satisfied that even if the Crown’s purpose had been to contradict or discredit KM, it would beappropriate to apply the curative provision of s.686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46 because no substantial wrongor miscarriage of justice has occurred as a result of the Crown proceeding as it did. Had Crown counsel followed the procedure set out inR. v. Milgaard, (SK CA), [1971] S.J.

No. 264, para 55, and sought permission to cross-examine KM under s. 9(2), Ihave no doubt it would have been granted. [29] Section 686(1)(b)(iii) provides: 686.

(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminallyresponsible on account of mental disorder, the court of appeal

... (

b) may dismiss the appeal where ... (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, ... [ 30 ] Section 9(2) provides:

(2) Where the party producing a witness alleges that the witness made at other times a statement in writing, reduced to writing, or recorded on audio tape or video tape or otherwise, inconsistent with the witness’ present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the court may consider the cross-examination in determining whether in the opinion of the court the witness is adverse. [ 31 ] Here KM was shown the transcript of the facts of this robbery admitted at his sentencing and a transcript of his own evidence given in court under oath at Mr.

Munroe ’ s trial. These are both recorded statements within the meaning of s. 9(2). There are inconsistencies between these transcripts and KM ’ s initial testimony. The inconsistency between his initial testimony and the facts admitted at his sentencing is the number of males at Ms. MacDonald ’ s house at the time of the robbery. There was no real dispute on this point at the trial considering all of the other evidence that was before the judge. The inconsistency between KM ’ s testimony at Mr. Munroe ’ s trial and his initial evidence at Mr. Muise ’ s trial was that at Mr. Muise ’ s trial he said Ms.

MacDonald had picked up Messrs. Muise and Munroe in Fairview, en route from the robbery in Sackville to Spryfield. At Mr. Munroe ’ s trial he testified that he, Ms. MacDonald and Messrs. Muise and Munroe had left from Sackville together. [ 32 ] In light of the inconsistencies between the recorded statements and KM ’ s initial testimony at Mr. Muise ’ s trial, I cannot conceive of any reason why the judge would deny cross-examination had it been sought. [ 33 ] The circumstantial evidence with respect to Mr. Muise being one of the three males who robbed Mr.

Brooks is so strong, as is set out in paragraph 11 above, that even without KM ’ s evidence, I would have no concern about the judge ’ s verdict. No substantial wrong or miscarriage of justice occurred. [ 34 ] I would dismiss the appeal. Hamilton, J.A. Concurred in: Saunders, J.A. Bryson, J.A.