R. v. Gareau, 2016 NSCA 75

Nova Scotia Court of Appeal Citation: R. v. Gareau , 2016 NSCA 75 Date: 20161026 Docket: CAC 424284 Registry: Halifax Between: Steven Gerald Gareau Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Joel E. Fichaud Appeal Heard: May 12, 2016, in Halifax, Nova Scotia Subject: Criminal law – propensity evidence – cross-examination

Summary: Mr. Gareau was charged with first degree murder and conspiracy to commit murder in the shooting death of Sean Simmons. Gareau’s defence was that he was at the scene for a drug deal, and was unaware of the plot to murder Simmons. The jury convicted Gareau of both charges. On the appeal, Mr. Gareau says that the judge erroneously allowed the jury to hear prejudicial propensity evidence without a caution, and improperly restricted his counsel’s cross-examination on an exculpatory statement.

Issues: Did the judge err in law either by admitting propensity evidence or by restricting the defence’s cross- examination? If so, was the error saved by s. 686(1)(b)(iii) of the Criminal Code ? Result: The Court of Appeal allowed the appeal and ordered a new trial. The judge improperly allowed the jury to hear propensity evidence of another shooting that was not covered by this indictment. The Court rejected the Crown’s assertion that the propensity evidence was admissible as narrative.

The judge improperly refused to allow the defence to cross-examine the Crown’s key witness on an exculpatory statement by that witness. The errors were not excused by s. 686(1)(b)(iii). 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 26 pages. Nova Scotia Court of Appeal Citation: R. v. Gareau , 2016 NSCA 75 Date: 20161026 Docket: CAC 424284 Registry: Halifax Between: Steven Gerald Gareau Appellant v. Her Majesty the Queen Respondent

Judges: Fichaud, Farrar and Bourgeois, JJ.A. Appeal Heard: May 12, 2016, in Halifax, Nova Scotia Written submissions concluded October 18, 2016 Held: Appeal allowed, convictions overturned and new trial ordered, per reasons for judgment of Fichaud, J.A.; Farrar and Bourgeois, JJ. A. concurring Counsel: Lee V. Seshagiri and David Mahoney, for the appellant James Gumpert, Q.C., for the respondent Reasons for judgment: [ 1 ] On October 3, 2000, Sean Simmons died from a bullet to the skull. The evidence in this record indicates that Dean Kelsie was the shooter.

Kelsie, Paul Derry, Tina Potts, Wayne James and Neil Smith had planned the murder. The appellant Steven Gareau accompanied Kelsie at the shooting. The Crown says Gareau knowingly participated with the others. Gareau’s defence is that he knew nothing of a murder plot and expected to meet Simmons for a drug deal, then Kelsie pulled out the gun and shot Simmons. [ 2 ] Gareau was charged with first degree murder and conspiracy to commit murder. The verdict turned on whether Gareau knew in advance of the plan to shoot Simmons. The jury convicted him of both charges. [ 3 ] Mr. Gareau appeals.

He submits, among other grounds, that the judge erroneously allowed the jury to hear prejudicial propensity evidence and restricted his counsel’s cross-examination of a Crown witness on a critical exculpatory statement. Background [ 4 ] My chronology derives from the testimony of the Crown’s witnesses, particularly Paul Derry and Tina Potts. [ 5 ] In the summer of 2000, Mr. Derry, his spouse Ms. Potts and the appellant Steven Gareau moved from Ontario to Nova Scotia. They shared an apartment in Dartmouth. [ 6 ] The three supported themselves by drug-dealing and bank card fraud.

Gareau’s narcotics suppliers were Derry and Wayne James. Derry and James were supplied by Neil Smith of the Hell’s Angels. Smith provided them with powdered cocaine that was cooked into crack for street sale. Their transactions were on credit. Derry and James accumulated a debt of about $85,000 owing to Smith. [ 7 ] Their place of business was a unit in an apartment building on Trinity Avenue in Dartmouth. [ 8 ] Sean Simmons was the eventual victim of this murder. Back in 1994, Simmons had an affair with the girlfriend of Mike MacRae. MacRae was a Hell’s Angels club-mate of Smith.

Simmons’ liaison made him a Hell’s Angels target. After being severely beaten twice, Simmons moved to New Brunswick in October 1994. Four years later he made the mistake of returning to Nova Scotia. [ 9 ] In September 2000, Simmons appeared at the Trinity apartment. He and Derry discussed the prospect that Simmons would sell quaaludes for Derry. [ 10 ] Derry asked Gareau to keep an eye out for Simmons at Trinity and follow up on the quaaludes arrangement. [ 11 ] Derry told James of his encounter with Simmons. James informed Smith.

Smith was perturbed by Simmons’ earlier relationship with a club-member’s girlfriend. So Smith ordered James to have Simmons “whacked”. James then turned to Derry, who was present for the conversation, and said “You heard him”. In return, Smith would waive $25,000 of the Derry/James debt for fronted cocaine. Gareau was not in attendance during this exchange. [ 12 ] Derry asked Gareau to locate Simmons.

Though Gareau did not testify, the defence claims Gareau was unaware of any murder plot, and thought the aim was to complete the arrangement for Simmons to traffic quaaludes. [ 13 ] On October 3, 2000, Gareau was at the Trinity apartment. Simmons showed up. Gareau phoned Derry to inform him of Simmons’ presence. At the time, Derry was with James, and James also spoke to Gareau on the phone. They told Gareau to meet them at a parking lot near the Trinity apartments. Gareau agreed.

There is no evidence that, on this phone call, they told Gareau of the plan to murder Simmons. [ 14 ] James went to his apartment at Uniacke Square and got a handgun. Then he rounded up Derry, Potts and Dean Kelsie. [ 15 ] James, Derry, Potts and Kelsie drove to Trinity. Derry was at the wheel. In the car, Derry dissuaded James from doing it himself. They agreed that Kelsie would shoot Simmons. James handed Kelsie the handgun. Potts gave Kelsie gloves and a hooded vest. Gareau was not in the car.

[ 16 ] At the parking lot outside Trinity, they met Gareau, who had been waiting nearby. James gave Gareau $20 and told him that, after they were done at Trinity, Gareau should go to a tavern for a drink, then take a taxi to Uniacke Square. [ 17 ] Gareau and Kelsie walked to the Trinity apartment. Kelsie had the gun, but it was not visible on his person. Gareau did not conceal his identity. In the Trinity lobby they met Simmons. No eye-witness testified to the shooting. Simmons was fatally shot in the head. Kelsie ran back to the car that Derry had parked nearby.

Derry testified that Kelsie entered the car “saying that he had killed Sean or that he had shot him three times”. At the car, Kelsie gave the gun back to Potts, who testified that three of the casings no longer had live rounds. Gareau fled out Trinity’s back door in another direction. He was not at the car. [ 18 ] Smith, James, Kelsie and Gareau were charged with murder and conspiracy to commit murder. Derry and Potts received immunity from prosecution in return for cooperating to obtain wiretaps and secure convictions against the others. [ 19 ] Smith and James were tried together and convicted.

After a separate trial, Kelsie was convicted. In another proceeding awaiting hearing, Kelsie has appealed his conviction to the Court of Appeal. [ 20 ] On November 19, 2004, a jury convicted Gareau of first degree murder and conspiracy to commit murder. On April 25, 2012, this Court set aside the convictions and ordered a new trial ( 2012 NSCA 41 ).

The basis was the trial judge’s erroneous instruction that the jury could use the convictions of the alleged co-conspirators to assess Gareau’s knowledge and intent. [ 21 ] Between September 3, 2013 and February 5, 2014, Gareau was re-tried before Supreme Court Justice John Murphy with a jury. The Crown offered testimony of 18 witnesses, including Derry and Potts. The other conspirators – Smith, James and Kelsie – did not testify. The defence called no evidence.

The outcome turned on whether Gareau knew in advance of the plan to kill Simmons. [ 22 ] On February 5, 2014, the jury convicted Gareau of first degree murder and conspiracy to commit murder contrary to ss. 235(1) and 465(1) (

a) of the Criminal Code . He was sentenced to life imprisonment without eligibility for parole for 25 years. [ 23 ] On February 12, 2014, Mr. Gareau filed a prisoner notice of appeal, later amended after he obtained appeal counsel. He appeals his convictions. Issues [ 24 ] Mr. Gareau’s amended notice of appeal raised six issues, reduced by his factum to five: 1. Did the judge err in law by admitting evidence of bad character or propensity, and by failing to caution the jury on its use? 2.

Did the judge err in law by not allowing the Defence to cross-examine Derry respecting Derry’s apparent adoption of an exculpatory statement by Gareau? 3. Did the judge err by permitting the Crown to leave a written

summary with the jury, while denying the Defence an opportunity to leave a reply

summary? 4. Did the judge err in law with his instructions on conspiracy? 5. Was the judge’s charge to the jury unbalanced? [ 25 ] At the appeal hearing on May 12, 2016, Mr. Gareau’s counsel requested the opportunity to file further written submissions on a new point that was collateral to one of the issues. The Crown did not object. Supplementary memoranda and replies were filed, with the final rebuttal arriving in mid-October, 2016. [ 26 ] In my respectful view, the appeal should be allowed based on the first and second issues. It will be unnecessary to discuss the other three.

First Issue: Propensity Evidence [ 27 ] Mr. Gareau’s indictment charges that he committed murder, and conspired to commit murder in the death of Sean Simmons. It says nothing about any other potential victim. [ 28 ] Derry testified about another shooting, whose target was a Vincent Ross, on an undated occasion before Simmons’ murder. Derry’s direct examination by the Crown includes: Q. What can you say to the jury about an incident that might have occurred at Vincent Ross’ place prior to October 3 rd , 2000? A. Tina and I got a call late at night, I think it was late at night. We were in bed anyway, and … Q.

Okay. Can I – I’m going to interrupt you just for a second very briefly. A. Yeah. Q. You got a call late at night?

A. Yeah. Well, that night. Q. Right. That night. Sorry. Where were you living, sir at that time? A. On Albro Lake Road. Q. Okay. Please continue. A. So we got the call from Wayne James. He was having an altercation with Vincent Ross, and he asked us to come over and to bring a gun with us. So Tina and I jumped into – we had a rental truck at the time. We jumped into the truck and we went over to the Square, and Steve jumped into the Toyota and he came over with us. Q. Okay. Just explain what happens. A. When we got there? Q. Yeah. A. When we got there, we pulled into the parking lot.

I think I drove the truck up over and into the courtyard, Steve blocked off the main entrance to the parking lot, Tina jumped out and went to Wayne and handed him the gun . I believe Tina handed him the gun. I don’t – I don’t remember having it, so I think Tina handed it to him. They were fighting. They were yelling back and forth, and Wayne fired off three shots at Vince. Vince was in his window yelling out at him, so Wayne fired off three shots at him. And then Tina took the gun from him and took off running. Q. Okay. A. Kind of cleared the area. Q. All right.

So which gun, just so the jury is clear on this, was used during I guess what I’ll call the Vincent Ross incident? A. I think we all had guns with us, but that was the one that was given to Wayne that night and the one that he shot at Vince Ross. Q. Okay. And Mr. Gareau was present for that incident? A. He was some – somewhere behind me. Somewhere in the area. I don’t know exactly where. Q. All right. Thank you. Okay. Back to October 3 rd . … [emphasis added] [ 29 ] “Steve” refers to Mr. Gareau. [ 30 ] Ms. Potts, questioned by the Crown, also testified about the Ross incident: Q. Was Mr. Gareau present? A.

I didn’t see him there. … Q. So you didn’t personally see Mr. Gareau there that day? A. No. [ 31 ] Before the jury heard this testimony by Derry and Potts, the defence objected to this and other testimony as propensity or character evidence. The judge ruled that the evidence was admissible. Justice Murphy said: In my view, the evidence is not properly classified as character evidence. Any character or propensity aspect is incidental. It is not the main or the only or the principal focus of the testimony.

In any event, I am satisfied that the information is relevant, that the Crown has met the burden to establish relevance. It’s relevant to the narrative, the context and the background with respect to the offence. The evidence sets the milieu and activity of the accused and his involvement with alleged co-conspirators in relation to the murder weapon. I accept that the primary focus is Mr. Gareau’s knowledge of and involvement with the murder weapon and the alleged co-conspirators and not his character.

I’m satisfied that the probative value of the evidence outweighs any prejudicial effect, and the jury can, if appropriate or necessary, be given a limiting instruction directing them not to use the evidence to assess Mr. Gareau’s character or propensity to offend. The Crown is on notice that in introducing the evidence or in referring to it during cross-examination the focus must relate to Mr. Gareau’s involvement with the weapon and the alleged co-conspirators and the incident of October 3 rd , 2000, giving rise to the charges before the court, not to his character. So, in

summary, I’ve considered all the arguments, including the authorities cited by the defendant, and I’m not prepared to exclude the evidence as character or propensity evidence. I’ve concluded it relates to matters directly relevant to the issues at trial with, in any event, its probative value outweighing any prejudicial effect, and, if necessary, the jury’s use of the evidence can be restricted by a limiting instruction. [ 32 ] At no time did the judge give a limiting instruction or caution to the jury on the jury’s use of Derry’s testimony about the

Vincent Ross incident. [33] Neither did the judge’s jury charge include a limiting instruction on the jury’s use of this evidence. Rather, the charge reiteratedDerry’s testimony: He said they took a rented truck which they had and drove to the courtyard in Uniacke Square. He said that Steve Gareau was there andblocked the entrance with the Toyota. Mr. Derry testified that Tina gave Wayne the gun. He said that Wayne fired three shots at Vinceand Tina took the gun from him and ran off. … [34] On the appeal, Mr.

Gareau’s counsel says Derry’s testimony – that Gareau “blocked off” the entrance while Potts gave Jamesthe gun and James fired the gun at Ross – was classic propensity evidence. It told the jury that Gareau was a knowing protagonist withthe same conspirators in another attempted murder that was not encompassed by this indictment. [35] What legal principles govern propensity evidence? [36] In R. v. Handy, 2002 SCC 56 , [2002] 2 S.C.R. 908, Justice Binnie for the Court explained the exclusionary rule andthe principal exception. As to the rule: 31.

The respondent is clearly correct in saying that evidence of misconduct beyond what is alleged in the indictment which does no morethan blacken his character is inadmissible. Nobody is charged with having a “general” disposition or propensity for theft or violence orwhatever. The exclusion thus generally prohibits character evidence to be used as circumstantial proof of conduct, i.e., to allow aninference from the “similar facts” that the accused has the propensity or disposition to do the type of acts charged and is therefore guiltyof the offence. … 33.

Subsequently, and most famously, the general exclusionary rule was laid down by Lord Herschell L.C. in Makin v. Attorney-Generalfor New South Wales, [1894] A.C. 57 (P.C.), in these terms, at p. 65: It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal actsother than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from hiscriminal conduct or character to have committed the offence for which he is being charged. 34.

The court spoke there of “criminal acts”, but this has been broadened to include any proffered “similar facts” of a discreditablenature (Robertson, supra, [ (SCC), [1987], 1 S.C.R. 918], at p. 941; B.(L.), supra, [R. v. B.(L.), (ONCA), 102 O.A.C. 104 (O.C.A.)], at pp. 45-46 … … 36. The exclusion of evidence of general propensity or disposition has been repeatedly affirmed in this Court and is not controversial.See Morris v. The Queen, (SCC), [1983] 2 S.C.R. 190; R. v. Morin, (SCC), [1988] 2 S.C.R. 345; R. v. B.(C.R.), (SCC), [1990] 1 S.C.R. 717; R. v.

Arp, (SCC), [1998] 3 S.C.R. 339. [37] Justice Binnie then summarized the principal exception to the exclusionary rule: 49. The present rule was succinctly formulated by McIntyre J. in Sweitzer v. The Queen, (SCC), [1982] 1 S.C.R. 949, atp. 953: The general principle described by Lord Herschell may and should be applied in all cases where similar fact evidence is tendered and itsadmissibility will depend upon the probative effect of the evidence balanced against the prejudice caused to the accused by its admissionwhatever the purpose of its admission. 50.

The rule received more extended and comprehensive treatment by McLachlin J. in B.(C.R.), supra, itself. ... : ... [E]vidence which is adduced solely to show that the accused is the sort of person likely to have committed an offence is, as a rule,inadmissible. Whether the evidence in question constitutes an exception to this general rule depends on whether the probative value ofthe proposed evidence outweighs its prejudicial effect. 51. The Court thus affirmed that evidence classified as “disposition” or “propensity” evidence is, exceptionally, admissible.

McLachlinJ. continued at p. 735: In a case such as the present, where the similar fact evidence sought to be adduced is prosecution evidence of a morally repugnant actcommitted by the accused, the potential prejudice is great and the probative value of the evidence must be high indeed to permit itsreception.

The judge must consider such factors as the degree of distinctiveness or uniqueness between the similar fact evidence and theoffences alleged against the accused, as well as the connection, if any, of the evidence to issues other than propensity, to the end ofdetermining whether, in the context of the case before him, the probative value of the evidence outweighs its potential prejudice andjustifies its reception. [38] Justice Binnie (paras. 53-54) adopted passages from Justice Cory’s reasons in R. v.

Arp, (SCC), [1998] 3S.C.R. 339, paras. 41-42, 50, 65: ...evidence which is adduced solely to show that the accused is the sort of person likely to have committed an offence is, as a rule,inadmissible. Whether the evidence in question constitutes an exception to this general rule depends on whether the probative value ofthe proposed evidence outweighs its prejudicial effect. [Arp, para. 41, quoting B.(C.R.)]

It can be seen that in considering whether similar fact evidence should be admitted the basic and fundamental question that must be determined is whether the probative value of the evidence outweighs its prejudicial effect. [ Arp , para. 42] In

summary, in considering the admissibility of similar fact evidence, the basic rule is that the trial judge must first determine whether the probative value of the evidence outweighs its prejudicial effect. [ Arp , para. 50] The issue in every case is whether the probative value of the evidence outweighs its prejudicial effect. [ Arp , para. 65] [Justice Binnie’s underlining] [ 39 ] Justice Binnie gave directions on the balancing test for the exception: 55. Similar fact evidence is thus presumptively inadmissible.

The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies reception. … 69. ... McIntyre J., in Sweitzer , supra , emphasized that whether or not probative value exceeds prejudicial effect can only be determined in light of the purpose for which the evidence is proffered (p. 953). ... 70.

An indication of the importance of identifying “the issue in question” is that the trial judge is required to instruct the jury that they may use the evidence in relation to that issue and not otherwise. 71. This Court has frequently gone out of its way to emphasize that the general disposition of the accused does not qualify as “an issue in question”. As stated, the similar fact evidence may be admissible if, but only if , it goes beyond showing general propensity (moral prejudice) and is more probative than prejudicial in relation to an issue in the crime now charged. ... 73.

The requirement to identify the material issue “in question” (i.e., the purpose for which the similar fact evidence is proffered) does not detract from the probative value/prejudice balance, but is in fact essential to it. Probative value cannot be assessed in the abstract. The utility of the evidence lies precisely in its ability to advance or refute a live issue pending before the trier of fact. 74. The issues in question derive from the facts alleged in the charge and the defences advanced or reasonably anticipated.

It is therefore incumbent on the Crown to identify the live issue in the trial to which the evidence of disposition is said to relate. If the issue has ceased to be in dispute, as for example when the fact is admitted by the accused, then the evidence is irrelevant and it must be excluded: . . . 81. The decided cases suggest the need to pay close attention to similarities in character, proximity in time and frequency of occurrence.

Wigmore put it this way: Since it is the improbability of a like result being repeated by mere chance that carried probative weight, the essence of this probative effect is the likeness of the instance. ... 82. The trial judge was called on to consider the cogency of the proffered similar fact evidence in relation to the inferences sought to be drawn, as well as the strength of the proof of the similar facts themselves. ... …

(2) Assessment of Prejudice … (

a) Moral Prejudice 139. It is frequently mentioned that “prejudice” in this context is not the risk of conviction. It is, more properly, the risk of an unfocussed trial and a wrongful conviction. The forbidden chain of reasoning is to infer guilt from general disposition or propensity. The evidence, if believed, shows that an accused has discreditable tendencies. In the end, the verdict may be based on prejudice rather than proof, thereby undermining the presumption of innocence in ss. 7 and 11(

d) of the Canadian Charter of Rights and Freedoms . … (

b) Reasoning Prejudice 144. The major issue here is the distraction of members of the jury from their proper focus on the charge itself aggravated by the consumption of time in dealing with allegations of multiple incidents involving two victims in divergent circumstances rather than the single offence charged. …

(3) Weighing Up Probative Value Versus Prejudice 148. One of the difficulties, as McHugh J. pointed out in Pfennig , supra , at p. 147, is the absence of a common basis of measurement: “The probative value of the evidence goes to proof of an issue, the prejudicial effect to the fairness of the trial.” The two variables do not operate on the same plane.

149. As probative value advances, prejudice does not necessarily recede. On the contrary, the two weighing pans on the scales of justicemay rise and fall together. Nevertheless, probative value and prejudice pull in opposite directions on the admissibility issue and theirconflicting demands must be resolved. 150. … Justice is achieved when relevant evidence whose prejudice outweighs any probative value is excluded (R. v. Marquard, (SCC), [1993] 4 S.C.R. 223, at p. 246) and where evidence whose probative value exceeds its prejudice (albeit an exceptionalcircumstance) is admitted.

Justice includes society’s interest in getting to the truth of the charges as well as the interest of both societyand the accused in a fair process. A criminal justice system that has suffered some serious wrongful convictions in part because ofmisconceived notions of character and propensity should not (and does not) take lightly the dangers of misapplied propensity evidence. [Justice Binnie’s underlining and italics] [40] In R. v.

Mahalingan, 2008 SCC 63 , [2008] 3 S.C.R. 316, at para. 159, Justice Charron (dissenting on another issue, butspeaking for the majority on this point – see para. 1, per McLachlin, C.J.C.) confirmed Handy’s explanation of the exclusionary rule. Justice Charron continued: 160. It is clear that the rule extends not only to criminal acts, but to “similar acts” of a discreditable nature: Handy, at para 34. . . . 163.

The similar fact evidence rule therefore precludes the Crown from adducing evidence that the accused engaged in criminal ordiscreditable conduct beyond what is alleged in the indictment, unless it is established on a balance of probabilities that the probativevalue of the evidence in relation to an issue in the case outweighs its potential prejudicial effect. ... [41] In R. v. G.(S.G.), (SCC), [1997] 2 S.C.R. 716, para. 63, Justice Cory said there were three exceptions to theexclusionary rule for character evidence.

The first – that “the evidence is relevant to an issue in the case” – involves the balancing ofprobative value and prejudicial effect that was later discussed in Handy. Justice Cory’s second exception was “where the accused putsher character in issue”. His third was “where the evidence is adduced incidentally to proper cross-examination of the accused on hercredibility”, citing Lucas v. The Queen, (SCC), [1963] 1 C.C.C. 1 (S.C.C.), [1962] S.C.J. No. 80, and R. v. Chambers, (SCC), [1990] 2 S.C.R. 1293. The second and third exceptions do not apply to Mr. Gareau’s case.

He did not put hischaracter in issue, and the Crown adduced the impugned evidence on direct examination of a Crown witness. [42] For Mr. Gareau, the issues are (1) whether the exclusionary rule applies and, if so, (2) whether the exclusion is excepted andthe evidence is admissible, after balancing probative value and prejudicial effect, under Handy’s principles. [43] In my respectful view, the judge erred in law in his application of both the rule and the exception. [44] As to the exclusionary rule, the judge said: In my view, the evidence is not properly classified as character evidence.

Any character or propensity aspect is incidental. It is not themain focus or the only or the principal focus of the testimony. [45] The judge assumed that evidence with a forbidden propensity does not engage the rule, if the Crown’s main focus was a fact inissue. With respect, that misapprehends the relationship of the rule and the exception. Evidence that imparts a forbidden propensityengages the rule. The impact of the Crown’s different focus is for the exception’s balancing exercise. That was Justice Binnie’s point in Handy. See also the discussion in Casey Hill, David M. Tanovich, Louis P.

Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed.loose-leaf (Toronto: Canada Law Book, 2014), para. 10.40.10.20 (titled “Prior Discreditable Conduct Evidence Tendered for OtherPurposes Should be Caught by the Exclusionary Rule”), and authorities there cited. [46] The outcome turned on whether Gareau knowingly participated with Smith, James, Derry, Potts and Kelsie in Simmons’shooting on October 3.

The defence theory was that Gareau did not know of the plan to shoot Simmons until Kelsie pulled out the gunand fired it. [47] On the Ross incident, Derry testified that Gareau “blocked off the main entrance to the parking lot” while Potts gave James thegun and James fired three shots at Vincent Ross. The message to the jury was: Gareau had the disposition to knowingly participate in ashooting with these same co-conspirators. The jury reasonably could have taken that inference as fatal to Gareau’s theory on theSimmons indictment. Derry’s testimony was similar fact evidence with a discreditable propensity.

The judge erred in law by concludingthat the rule was not engaged. [48] Next is the exception. Handy, paras. 73-74, says the probative value must relate to “its ability to advance or refute a live issuepending before the trier of fact”, and “[i]t is therefore incumbent on the Crown to identify the live issue in the trial to which the evidenceof disposition is said to relate”. [49] The Crown’s factum identifies the following issues: 141. The testimony that the Appellant blocked the parking lot was not the focus of this evidence. 142. Rather the focus was to show: 1.

The chain of continuity of the handgun used in the murder. 2. That the Appellant knew that Wayne James possessed a handgun. 143. It is submitted that this evidence was very relevant to the charges being tried. The Appellant blocking the parking lot explained his

presence and was part of the narrative. After summarizing the judge’s jury charge, the Crown’s factum adds that any prejudice would be benign: 145. There was no evidence regarding the Appellant other than that he blocked a driveway entrance.

These actions were so benign that there would have been no air of reality to the notion that the jury would form some propensity reasoning that the Appellant would have participated in the planning of the murder. [ 50 ] I do not accept the Crown’s proposition that Derry’s evidence about Gareau blocking the driveway was probative to a live issue involving the handgun: • The handgun’s continuity and chain of possession were not in issue. The Agreed Statement of Facts, signed by Gareau and his counsel, said: III.

CONTINUITY OF ALL EXHIBITS – The defence agrees that there is no issue with respect to continuity and the chain of possession of all exhibits. These items have not been tampered with and/or altered in any way from the point such items were taken into custody by Crown witnesses, except for examination of these items conducted by these witnesses. Exhibit 20 was the handgun identified by the Crown witnesses as the Simmons murder weapon. • The location of the handgun on an isolated evening some unspecified time before the Simmons shooting was not a live issue in the Simmons trial.

If nothing had been said about the Ross episode, the Crown’s case against Gareau for the Simmons shooting would have been unimpaired, minus the propensity. • Whether Gareau participated in an apparent attempted murder of Ross had no connection to the chain of continuity of the handgun. Gareau didn’t have the handgun during the Ross incident. Derry could have explained the whereabouts of the gun on that evening, without saying that Gareau blocked the driveway. • Evidence that Gareau knew in advance that Kelsie had a gun on October 3, 2000, before Kelsie shot Simmons, would have been probative.

But Derry’s testimony about the Ross incident, weeks earlier, had nothing to do either with Kelsie, who was not present for the Ross episode, or with Gareau’s prior awareness that Kelsie had a gun on October 3. • It doesn’t matter whether the gun James used in the Ross shooting was the weapon Kelsie used later on Simmons. If Kelsie had murdered Simmons with another gun, the outcome would still turn on whether Gareau had prior knowledge of the plan to shoot Simmons with any gun. [ 51 ] Neither do I accept the Crown’s proposition that the propensity evidence “was part of the narrative”.

Had the Crown charged Gareau with an offence related to the Vincent Ross incident, the whereabouts of Mr. Gareau and the gun on that evening would pertain to the narrative: e.g. R. v. Gallie , 2015 NSCA 50 , para. 49 . This indictment was confined to Simmons’ murder, “Narrative” isn’t a portal for gratuitous propensity evidence about uncharged similar facts. [ 52 ] In Handy , Justice Binnie (paras. 59-68 ), under the heading “Propensity Evidence by Any Other Name Is Still Propensity Evidence”, said: 71.

This Court has frequently gone out of its way to emphasize that the general disposition of the accused does not qualify as “an issue in question”. [ 53 ] In R. v. Taweel , 2015 NSCA 107 , paras. 105-10 , Justice Saunders for the Court quoted passages from Christopher Nowlin, Narrative Evidence: A Wolf in Sheep’s Clothing ,

Part I (2006) 51 C.L.Q. 238 and

Part II (2006) 51 C.L.Q. 271. Justice Saunders continued: [111] I share and endorse Mr. Nowlin’s expressions of concern. In this case, as we shall see, the judge did not exercise sufficient vigilance in his evaluation or weighing of the proffered evidence. He did not appreciate that any prosecutorial efforts to introduce similar fact evidence under the guise of “narrative” or “context” should be greeted with a healthy dose of scrutiny and skepticism. [ 54 ] In Gareau’s case, Justice Murphy’s ruling said: It’s relevant to the narrative, the context and the background with respect to the offence.

The evidence sets the milieu and activity of the accused and his involvement with the alleged co-conspirators in relation to the murder weapon. [ 55 ] Gareau’s “involvement with the alleged co-conspirators” centered on whether Gareau was of the mind to join those people in an attempted murder. This was the central “live issue” in the Simmons trial. This was also the general disposition that Handy , para. 71 , says “does not qualify as ‘an issue in question’ ” for the exception to the rule against propensity evidence.

Allowing the jury’s use of the Ross incident for that purpose invited propensity reasoning. [ 56 ] The Crown’s factum also says that the prejudicial effect is “benign” as “there would be no air of reality to the notion that a jury would form some propensity reasoning that the Appellant would have participated in the planning of the murder”. For the reasons I have described, I respectfully disagree. [ 57 ] The Crown had the onus to show that the probative value for a live issue, identified by the Crown, exceeded the prejudicial effect of propensity. The Crown did not satisfy that onus.

Evidence of Gareau’s blocking the driveway to assist in the Ross shooting had little or no probative value to any live issue for the Simmons murder. The propensity clearly would be prejudicial. The judge’s ruling misinterpreted the scope of both the exclusionary rule and the exception. Those were errors of law. To the extent the evidence may have had marginal probative value, the judge erred in law by not instructing the jury to disregard the propensity.

[ 58 ] The Crown has not cited the curative proviso on this issue. Had the provision been cited, I would not have applied it. The wrongly admitted evidence related to the pivotal factual issue for the jury. It is impossible to exclude the reasonable possibility that members of the jury were influenced by it. [ 59 ] I would allow the appeal on this basis alone. Second Issue: Disallowing Cross-Examination [ 60 ] After Simmons’ murder, Derry cooperated with police to secure wiretap evidence against the others. Intercept 214 is the transcript of a conversation between Derry and Gareau on March 6, 2001.

Voice 1 is Derry, and Voice 2 is Gareau. Intercept 214 includes: Voice 1: Ya know? I already told you, the worst case scenario is you’ve got to look at yourself, and I’m not goin’ to get into it again. Voice 2: No. Voice 1: You’ve got to look at yourself …. Voice 2: You don’t even have to go there. I’ve already gone … gone over that. Voice 1: But just be honest with what is in your heart and expect the worst, and the worst is not 25 years because you did not kill nobody. Voice 2: I know. Voice 1: Okay. Voice 2: Yeah, I know. Voice 1: So like you keep that … Voice 2: I wasn’t aware of it, so. Voice 1: What’s that?

Voice 2: I wasn’t aware. Voice 1: Exactly. Voice 2: So …. Voice 1: So there just leave it at that, ya know, like that is where you’re at. Like, you know, and … and like I can’t tell you anything more than …. Voice 2: You know what? Voice 1: You know, the truth is the best fuckin’ …. Voice 2: I understand that. But you know what? Voice 1: M’m. Voice 2: I … I didn’t have a dream of two Winnebagos for nothin’ Voice 1: … (Laughs) … [bolding added] [ 61 ] The Crown chose not to introduce Intercept 214 into evidence. [ 62 ] The key exchange is Gareau’s statement “I wasn’t aware”, to which Derry replied “Exactly”.

The defence sought to cross- examine Derry on Derry’s statement – “Exactly” – that, on its face, adopted Gareau’s denial of awareness. [ 63 ] After a voir dire , the judge disallowed the cross-examination. Justice Murphy said: I have decided that the Crown’s position prevails here and that the defence should not be able to explore with Mr. Derry the latter highlighted portions of page 19 of the March 6 th intercept. In my view, to do so would be effectively inviting Mr. Derry to comment on an exculpatory statement made by the accused, and that is not permissible.

The law is pretty clear, as I understand it, that a statement may be introduced by the Crown; it may not be introduced for self-serving purposes by an accused, either through the accused’s testimony or by accused’s counsel cross-examining other witnesses. In my view the statement is a self-serving statement and it would be inappropriate to put to this witness his reaction to that statement. The effect of that would be to put before the court what the accused said during the wiretap, and it’s the Crown’s prerogative whether to put in a statement and whether to introduce a wiretap. The Crown has not done so.

So for all the reasons advanced by the Crown and set

out in the Li case, I have determined that this statement should not be introduced and Mr. Derry cannot be questioned with respect to howre reacted to Mr. Gareau’s statements. I guess the only other comment I would make would be there’s no practical purpose of defence putting this in, in my view, other than toget Derry’s comment on a statement by the accused. Mr. Derry has already testified about what he understood Mr.

Gareau’s knowledgeand participation was, and he’s given that evidence from his own understanding, and to have him expand on that in the context of anexculpatory statement, in my view, is not appropriate. So for those reasons, as we discussed, the first highlighted entry by Voice 1, Mr.

Derry can be asked if he said that and any logicalquestions that follow from that statement; but as far as commenting on the remainder of the highlighted area, his answers in isolationreally can’t mean anything without introduction of the statement, and that’s just not permitted. [64] The judge allowed cross-examination on Derry’s statement “you did not kill nobody” in Intercept 214, but not on Derry’s reply“Exactly” to Gareau’s statement “I wasn’t aware”. [65] Justice Murphy relied on R. v. Li, (No. 1), (BC SC), [1980] 59 C.C.C. (2d) 76 (B.C.S.C.).

In Li, the Crown’switness, a police officer, testified about intercepted conversations between the accused and unindicted alleged co-conspirators. Thedefence wished to cross-examine to show that the intercepts did not include conversations between the two accused or with some of theunindicted co-conspirators. The purpose would be to show lack of association. Justice Trainor (para. 7) quoted from Justice Kaufman’s text, Admissibility of Confessions in Criminal Matters, 2nd ed. (Toronto: The Carswell Company Limited, 1974), p. 19: An extra-judicial statement made by an accused is either admissible or it is not.

If admissible, it becomes evidence both for and againstthe prisoner, if not, it is to be treated as non-existent, and nothing more ought to be heard of it. Two consequences flow from this: (1) theissue of admissibility must be decided before any mention of a statement is made within the hearing of the jury; and (2) where astatement is not admitted, no questions may be put to the accused about it, should he decide to testify. In Li, Justice Trainor continued: 8.

I am satisfied that the questions proposed would disclose the fact that there are a number of conversations which were intercepted bythe Crown, which it is not tendering in evidence. This would seem to fly in the face of the conclusion of Justice Kaufman which I havejust stated. 9. But this is not an attempt to get in evidence the existence of a particular conversation or statement and then ask the jury to draw anegative inference from the fact that the Crown chose not to lead it. This is only general evidence of association.

Surely, SpecialConstable Luk could be asked if he had any knowledge of association between the parties. In answering that question it would not beappropriate to exclude from the answer occasions when he may or may not have heard them speaking to each other. This is not anattempt to get in evidence the contents of a statement or to get a response which some inference can be drawn about the contents. Thiscan only go to the question of fact as to whether or not there was association. For those reasons counsel will be permitted to cross-examine as they propose. [66] In R. v. Lee, [2003] B.C.J.

No. 3266 (S.C.), 2003 BCSC 2048, paras. 26-41, Justice Cullen reviewed Li in the context of thedeveloping case law and concluded: 41 Thus, in my view, while Trainor J’s judgment in Li is good law, it does not stand for the proposition that, simply because anutterance is captured by an interception, it becomes a statement which is inadmissible at the instance of the accused, for all purposes. [67] In R. v.

Maciel, 2007 ONCA 196, leave to appeal refused [2007] 3 S.C.R. xi, Justice Doherty for the Court held that the issueturned on an assessment of probative value: 56 During the Crown’s case, the defence sought to introduce tape recordings of two intercepted communications between the appellantand the undercover officer. In the first conversation, intercepted on September 14, 1999, the undercover officer called the appellant andaccused him of killing Silva. The appellant denied that he had killed Silva and also denied that he owed any debt.

The appellantsuggested to the undercover officer that he go back to the people who had directed him to the appellant and get better information. Thesecond call occurred on the same day. The appellant called the undercover officer and again told him that he should go back to thepeople who had directed him to the appellant as they must know something about the killing. 57 The trial judge excluded both conversations, analogizing them to exculpatory self-serving statements made by an accused after anarrest.

The trial judge held that exculpatory statements of that kind could only be introduced at the instance of the Crown. 58 The characterization of the appellant’s statements to the undercover officer as “self-serving” should not be determinative of theiradmissibility. I also do not equate the appellant’s statements to the undercover officer with post-arrest statements made to the police byan accused in answer to a charge. The Crown led evidence of a number of conversations involving the undercover officer and associatesof the appellant.

The Crown also led evidence of conversations in which the appellant and his associates discussed the activities of theundercover officer. The conversations occurred in the course of the investigation before anyone was charged. The defence was entitledto adduce evidence of other intercepted conversations through Crown witnesses, including conversations involving the appellant, aslong as those conversations were relevant to and probative of a fact in issue. [emphasis added] [68] Maciel’s test is not an open door to self-serving statements.

Justice Doherty then held that, in the circumstances of that case, thetendered statements had no probative value and should be excluded: 59 The appellant’s denials of any involvement in Silva’s murder in the conversations with the undercover officer have no probativevalue. The appellant was not sure who the undercover officer was when the appellant spoke with him. He was, however, sure that the

undercover officer was either a gangster representing the Columbians from New York or a police officer posing as a gangster. In either event, the appellant would not do anything other than deny involvement in Silva’s murder. The denial could have no probative value in those circumstances. [ 69 ] Returning to British Columbia, in R. v. Sipes , 2012 BCSC 2167 , the Crown introduced 37 wiretaps and the defence sought to enter an additional wiretap in the cross-examination. The court, paras. 8-11, applied Maciel , instead of the earlier British Columbia authority that had spanned the Lee decision.

In Sipes , Justice Smart said: [10] I read Doherty J.A. to have found the calls inadmissible because they were irrelevant, not because they were statements of an accused tendered by the accused during the Crown’s case. I read Dillon J. to have undertaken a similar analysis in Belcourt [ R. v. Belcourt , 2011 BCSC 1506 ]. I respectfully agree and adopt the same. [11] As such, the question of admissibility is linked to the purpose for which the calls are tendered by the accused.

If offered for truth, they are hearsay and inadmissible unless relevant and admissible pursuant to a hearsay exception or to provide context or to explain other calls tendered by the Crown. If not tendered for truth, the calls must still be relevant and of sufficient probative value to justify admission. [ 70 ] In Gareau’s case, the judge’s reasons did not cite Maciel or Sipes . [ 71 ] I accept that Maciel and Sipes have stated the governing principles. [ 72 ] Applying those principles to Mr.

Gareau’s trial - was Intercept 214 “relevant to and probative of a fact in issue”? [ 73 ] The key issue was whether Gareau had prior knowledge of the plan to kill Simmons. The other protagonists, with knowledge of the plan, were Smith, James, Kelsie, Potts and Derry. Smith, James and Kelsie did not testify. Potts’ testimony said nothing to attribute Gareau with prior knowledge of the murder plot. The Crown’s case against Gareau centered on Derry. [ 74 ] The Crown’s direct examination of Derry elicited vague testimony on the point: Q. What would you have been discussing in those many times you and Mr.

Gareau and Mr. James were together? A. We discussed the same things all the time, business, what we were doing. It wasn’t separate discussions or – we just talked about everything all the time. Q. And did that include the plans and preparations to kill Sean Simmons? A. I don’t remember a specific conversation that would have been all three of us, but it’s not something that I wouldn’t – it’s not something that I would have hid from him. It’s not something that we wouldn’t have talked about around him .

We were all friends. [emphasis added] [ 75 ] The defence’s purpose with Intercept 214 was to show that Derry’s statement – “Exactly” – unequivocally acknowledged that Gareau had no involvement with the plan to kill Simmons. The proposed cross-examination would be directly probative of a fact that (1) was relevant to the Crown’s case, and (2) had been explored, with equivocal results, by the Crown’s direct examination of Derry. [ 76 ] The Crown’s closing argument to the jury cited, as critically probative, the absence of Gareau’s denial in his intercepted conversations with Derry. Crown counsel told the jury: MR.

CRAIG : … We’re going to talk about the intercepts or the wires now. Now, ladies and gentlemen, when you review this evidence, I’m going to ask you to highlight a couple of features of it. … And again, maybe equally importantly, look at what is not said . And by that I mean specifically, if it’s suggested that the Crown has not proven that Mr. Gareau knew about the plan to kill Sean Simmons and that he was going to be killed on October 3 rd , given the tone of the conversation between Mr. Gareau and Mr.

Derry, given their relationship, given what they are talking about, the details of the murder, ask yourselves would you expect to hear something to the effect, “Geez, Paul, you know, when we went to do that thing on October 3 rd , 2000, I didn’t know Sean Simmons was going to be killed.” Given how they’re talking about everything else, including the details of what went down on October 3 rd , 2000, that is absent , and that is absent, we suggest to you, for a reason, and the reason is Mr.

Gareau knew full well what was going to happen on October 3 rd , 2000, and there’s plenty of evidence to support that. … Now, if the assertion is that we haven’t proven that Mr. Gareau knew about the plan to murder and that that plan was going to be executed on October 3 rd , why don’t you hear it in this kind of an intercept? Remember, it’s important not just what’s said but what isn’t said . He’s not protesting that he didn’t know anyone was going to be killed or that he didn’t know there was a plan to kill Sean Simmons.

You would expect to hear that there , we suggest to you , but it’s not, if that was the case. [emphasis added] [ 77 ] The only reasons the jury did not have Intercept 214 were that the Crown chose not to tender it, and the judge ruled this was the Crown’s choice to make. [ 78 ] Mr. Gareau’s appeal factum cited cases where the trial judge had excluded exculpatory evidence because of evidentiary rules, and the Crown’s closing jury address cited the non-existence of that evidence as probative of guilt. The appeal courts treated the

Crown’s jury address as a basis to allow an appeal from a conviction: R. v. Clarke, [1981] A.J. No. 933, [1981] 63 C.C.C. (2d) 224,paras. 23-24 (C.A.); R. v. LePerre, [1993] B.C.J. No. 757 (C.A.), [1993] 26 B.C.A.C. 294, paras. 18-19; R. v. Udy, 2006 BCCA 174,paras. 22-24; R. v. Butts, 2012 ONCA 24, paras. 23-24; R. v. Pasqua, 2009 ABCA 247, para. 24. [79] In Clarke, Justice McClung said: [24] To leave the jury with the impression that blackout was a concoction that first arose two months after the killing and was thereforea circumstantial contribution to the proof of guilt cannot stand.

I recognize counsel’s obligation to comment on nothing but theadmissible evidence during closing submissions.

But this responsibility should not be inverted to encourage jurors to make findings inconflict with undisputed facts which did not reach their attention simply because of trial safeguards. .... [80] In LePerre, Justice Southin said: [19] I am of the opinion that the belated remarks of Crown counsel raised the issue of recent fabrication (concoction) thus renderingadmissible the statement made by the accused to the police on the afternoon of July 6, 1991, for the limited purpose of rebutting thatallegation. [81] In Butts, the Ontario Court of Appeal’s per curiam reasons said: [24] In our view, the excluded evidence became relevant to the Crown’s particular theory of the case.

Had the Crown not advanced atheory that was inconsistent with the excluded evidence, there would have been no problem. However, given the manner in which theCrown chose to present its case, the excluded evidence acquired significant probative value to the defence on the inferences to be drawnfrom her upset state and loyalty to her boyfriend. That probative value was not substantially outweighed by any danger of prejudice to theproper administration of justice.

In our respectful view, the trial judge erred by permitting this distortion to occur and at the end of theday, the appellant was denied a fair trial. [82] In Gareau’s case, the Crown’s appeal factum also cites these five cases, then fairly acknowledges: 172. These decisions, in various ways, support the Appellant’s argument that the Crown should not avert to the absence of exculpatoryevidence when the Crown is aware that such evidence existed but was excluded from the Court process for reasons that it was notadmissible. The Crown adds R. v. Patterson, (ON CA), [2006] O.J.

No. 361 (C.A.), [2006] 79 O.R. (3d) 257 (C.A.), paras. 27-32,to similar effect. [83] Mr. Gareau’s counsel submits that the Crown’s address to the jury renders Intercept 214 admissible to rebut what the defencecharacterizes as the Crown’s disingenuous allegation. [84] In my view, the Crown’s jury address assists this Court’s application of Maciel’s test.

Counsel for the Crown told the jury that“you would expect to hear … ‘I didn’t know Sean Simmons was going to be killed’ ”, and the point was “important” to the jury’s task.Had the Crown chosen to offer Intercept 214, the jury would have heard Gareau say “I wasn’t aware”. The Crown’s jury addresssupports the view that Gareau’s disavowal, along with Derry’s apparent adoption of it, would be important – i.e. relevant with probativevalue. Derry was Gareau’s confidante, and Gareau did not know that their conversation was intercepted.

This is not like Maciel, para. 59,where the statement had no probative value because the speaker’s suspicion of his interlocutor generated a motive to fabricate. [85] On the appeal, the Crown cites R. v. Stirling, 2008 SCC 10 , [2008] 1 S.C.R. 272, and relies on the rule against priorconsistent statements. In Stirling, Justice Bastarache for the Court said: [5] It is well established that prior consistent statements are generally inadmissible [citations omitted]. This is because such statementsare usually viewed as lacking probative value and being self-serving. To similar effect: R. v.

Dinardo, 2008 SCC 24 , [2008] 1 S.C.R. 788, para. 36 and R. v. Ellard, 2009 SCC 27 , [2009] 2S.C.R. 19, para. 31. The Crown submits that Gareau’s words “I wasn’t aware” in Intercept 214 are Gareau’s self-serving prior consistentstatement that has no probative value. [86] I respectfully disagree. It is important to distinguish whose statement is at issue. The Crown’s submission doggedly focused onGareau’s words “I wasn’t aware” as Gareau’s prior consistent statement. But the defence sought to cross-examine Derry on Derry’sreply – “Exactly” – as Derry’s adoption of Gareau’s disavowal.

Derry’s assertion that Gareau was outside the conspiracy – if that is whatDerry meant by “Exactly” – would not be a self-serving prior consistent statement by Gareau. [87] Derry’s cross-examination on his own statement would be authorized by s. 10(1) of the Canada Evidence Act, R.S.C. 1985, c.C-5, as amended: 10(1) On any trial a witness may be cross-examined as to previous statements that the witness made in writing, or that have beenreduced to writing, or recorded on audio tape or video tape or otherwise, relative to the subject matter of the case, without the writingbeing shown to the witness or the witness being given the opportunity to listen to the audio tape or view the video tape or otherwise takecognizance of the statements, but, if it is intended to contradict the witness, the witness’ attention must, before the contradictory proofcan be given, be called to those parts of the statement that are to be used for the purpose of so contradicting the witness, and the judge, atany time during the trial, may require the production of the writing or tape or other medium for inspection, and thereupon make such useof it for the purposes of the trial as the judge thinks fit. [88] Derry was the Crown’s key witness on Gareau’s participation.

The bolded exchange from Intercept 214 (above, para. 60)reasonably might have led the jury to infer that, according to Derry, Gareau was outside the loop of the murder plot. On the other hand,Derry might have meant something else by “Exactly”. The jury’s assessment whether it was one or the other would be assisted by

Derry’s cross-examination. Derry’s cross-examination on the bolded exchange would be relevant to and probative of a central fact inissue, under the formulations in either Maciel, para. 58 or Stirling, para. 5. The trial judge erred in law by disallowing cross-examinationon that matter. [89] The Crown asks the Court to apply the curative provision in s. 686(1)(b)(iii). [90] The proviso may excuse a legal error and save a conviction only where “there is no reasonable possibility that the verdict wouldhave been different had the error … not been made”: R. v.

Khan, 2001 SCC 86 , [2001] 3 S.C.R. 823, para. 28, quoting R. v.Bevan, (SCC), [1993] 2 S.C.R. 599, at p. 617. In R. v. Van, 2009 SCC 22 , [2009] 1 S.C.R. 716, Justice LeBelsaid there were two tests: 34. … The Crown bears the burden of showing the appellate court that the provision is applicable, and satisfying the court that theconviction should stand notwithstanding the error. To do so, it must establish that the error of law falls into one of two categories. First,that it is an error so harmless or minor that it could not have had any impact on the verdict.

In the second category are serious errors thatwould otherwise justify a new trial or an acquittal, but for the fact that the evidence against the accused was so overwhelming that anyother verdict would have been impossible to obtain: Khan; R. v. Trochym, 2007 SCC 6; [2007] 1 S.C.R. 239. To the same effect: R. v. Charlebois, 2000 SCC 53 , [2000] 2 S.C.R. 674, paras. 10-11; R. v. Jaw, 2009 SCC 42 ,[2009] 3 S.C.R. 26, para. 42; R. v. Ellard, 2009 SCC 27 , [2009] 2 S.C.R. 19, para. 40. [91] Neither test saves Mr. Gareau’s convictions.

The Crown’s case on Gareau’s prior knowledge was circumstantial and dependedlargely on Derry. Derry’s potential testimony on cross-examination might have confirmed his statement – “Exactly” – that Gareau wasoutside the ambit of the murder plot. This reasonably might have altered the outcome. [92] I would allow the appeal on this ground alone. Conclusion [93] I would allow the appeal, overturn the convictions and order a new trial to be instituted at the Crown’s discretion. Fichaud, J.A Concurred: Farrar, J.A. Bourgeois, J.A.