Judge saw no basis upon which to conclude that the original trial judge's ruling was clearly wrong. It follows that he was not satisfied that it is in the interests of justice to permit the matter to be relitigated.
R. v. [REDACTED],  O.J. No. 2462
Ontario Superior Court of Justice
R.C. [REDACTED] J.
Heard: March 18, 2019.
Judgment: March 19, 2019.
Court File No.: CR-17-92
 O.J. No. 2462|2019 ONSC 1759
Between Her Majesty the Queen, and [REDACTED], [REDACTED], [REDACTED] and [REDACTED], Defendants
[REDACTED] and [REDACTED] for the Crown.
[REDACTED] for Mr. [REDACTED].
[REDACTED] for Ms. [REDACTED].
[REDACTED] for Mr. [REDACTED].
[REDACTED] and [REDACTED] for Mr. [REDACTED].
RULING ON CROWN APPLICATION TO RELITIGATE
PRIOR EVIDENTIARY RULINGS
R.C. [REDACTED] J.
1 A group confrontation in downtown Bradford, Ontario on the night of September 12, 2015 left one man dead, another injured and four persons charged with manslaughter and other offences.
2 The defendants' trial began in the spring of 2018. A mistrial was ordered about a month later after it was discovered that a juror had been doing some independent research into the case and sharing it with his fellow jurors.
3 The re-trial is about to begin. A number of pre-trial motions have been argued ahead of jury selection. This ruling addresses the Crown's request that the court reconsider, under s. 653.1 of the Criminal Code, two evidentiary rulings made by the trial judge in the original trial.
THE IMPUGNED RULINGS
4 To put the rulings in issue into context, some brief background information will be helpful. My vantage point of the facts, at this pre-trial stage, is pretty sketchy. What follows is a loose overview of the circumstances surrounding the alleged offences and the evidence that formed the subject matter of the rulings the Crown wishes to relitigate.
5 The charges arise from a confrontation between two groups of individuals that began when a small vehicle stuffed full of young people passed a trio of males walking home from a bar. The males included [REDACTED] and his stepson, [REDACTED].
6 The vehicle was a two door Honda Civic. Inside of it were the four defendants and two additional males, Mr. [REDACTED] and Mr. [REDACTED]. Words were allegedly exchanged between the two groups as they passed in the night.
7 The Civic turned around and went back to the location of the trio on foot. An argument ensued. The occupants of the Civic piled out. The argument quickly escalated into a fight. By the end of the fight, Mr. [REDACTED] lay unconscious on the ground, suffering from a significant head wound. He later died. A forensic pathologist has opined that the cause of death was blunt force trauma to the head.
8 Mr. [REDACTED] is a Crown witness. He testified at the original trial that two days after the alleged offences, he was with Mr. [REDACTED] and Mr. [REDACTED] at the rear of the latter's apartment building. He said the following in relation to Mr. [REDACTED]:
Chris told me that the police would be contacting me, and he wanted me to say that whatever happened between [REDACTED] [[REDACTED]] and some individual was self-defence.
9 Counsel for Mr. [REDACTED] objected to the evidence on two bases. First, that it was inadmissible hearsay. Second, that there was no foundation upon which to reasonably conclude that Mr. [REDACTED]’s utterances were adopted by Mr. [REDACTED] on the basis of his silence in the face of them.
10 A three day voir dire followed, during which [REDACTED]'s evidence was fully canvassed. Counsel made fulsome submissions. And then the trial judge ruled that the evidence was inadmissible on the bases advanced by Mr. [REDACTED]'s counsel. Written reasons for that decision followed.
11 As the trial proper was about to resume, defence counsel raised a concern that the trial judge had not yet addressed whether the Crown would be able to cross-examine Mr. [REDACTED] on the impugned conversation with Mr. [REDACTED], should a defendant elect to call Mr. [REDACTED] as part of a defence case.
12 After some relatively brief submissions from counsel, the trial judge ruled, orally, as follows:
Well, as far as I am concerned I think that it's a dead issue. I found that the evidence was hearsay and it's presumptively inadmissible. The jury will get my instruction. And in my view no counsel should revisit that conversation either in-chief or cross-examination or re-examination.
13 The Crown considers both rulings to have been in error and seeks to re-argue the issues, hoping, obviously, for a better result this time around.
THE GOVERNING AUTHORITIES
14 Section 653.1 of the Criminal Code came into force the better part of a decade ago as part of the Fair and Efficient Criminal Trials Act, S.C. 2011, c. 16. It creates a presumptive rule that, where mistrials occur, rulings related to disclosure or to the admissibility of evidence that were made in the first trial will be binding on the parties in any new trial. Its application is restricted to rulings that were made, or could have been made, before evidence on the merits was adduced.
15 The presumption created by s. 653.1 is rebuttable. To rebut the presumption, the party seeking to relitigate the subject matter of a prior ruling must satisfy the court, on a balance of probabilities, that it would not be in the interests of justice to bind the parties to the previous ruling.
16 The Court of Appeal recently considered the meaning of the phrase "the interests of justice" in the context of s. 653.1 in R. v. Victoria, 2018 ONCA 69. They held that the phrase reflects a judicial discretion to be exercised on a case-by-case basis. The proper exercise of the discretion requires "a consideration of the cumulative force of all relevant circumstances". (Para. 54). Those circumstances were said to include, non-exhaustively:
(a)whether any new evidence will be tendered on the proposed rehearing;
(b)whether any new arguments will be advanced on the proposed rehearing and the apparent merit, if any, of those arguments;
(c)the interests of the parties, including any articulable prejudice fostered or perpetuated by the inability to relitigate any issue previously decided;
(d)the public interest in the timely and efficient conduct of criminal trial proceedings and avoidance of unnecessary and duplicative proceedings;
(e)any changes in the legal principles governing the ruling on which relitigation is proposed;
(f)the nature of the evidentiary record on the basis of which the prior ruling was made, as for example, viva voce testimony; agreed statement of facts; transcripts of testimony given elsewhere and any differences in the record proposed for relitigation;
(g)the nature of the issue(s) involved in the prior ruling and proposed relitigation;
(h)the possibility of inconsistent rulings; and,
(i)any other circumstances relating to the balance of the subsequent trial proceedings that may have an impact on the continued applicability of the prior rulings.
THE PARTIES' POSITIONS
17 The Crown conceded that there is no new evidence to be considered, nor any new arguments to be made should the court agree to reconsider the evidence in issue. Simply put, the Crown's position is that the prior rulings were clearly wrong.
18 Crown counsel essentially argued that their case is unfairly prejudiced if they cannot reargue the admissibility of Mr. [REDACTED]'s impugned evidence because they have been wrongfully deprived of its use. They have similarly been wrongfully deprived of the ability to fully cross-examine Mr. [REDACTED] should he be tendered as a witness by a defendant. They assert that Mr. [REDACTED] attempted to obstruct justice in his interactions with Mr. [REDACTED] and that they should be able to challenge him on the matter, as it goes directly to his credibility.
19 This court, in the Crown's submission, should not perpetuate the clear legal errors made in the first trial.
20 The Crown conceded that if this court is not satisfied that the prior rulings were clearly wrong, then their application under s. 653.1 fails.
21 Defence counsel were united in their opposition to the Crown's application. They took the position that the Crown failed to seek leave to relitigate the prior rulings. This failure to expressly ask for leave is fatal to the application, in the view of the defence.
22 Substantively, they contended that the Crown is in effect asking this court to hear an appeal of the prior ruling. They submitted that the matters were fully canvassed through a lengthy voir dire, lengthy submissions and a lengthy and considered written ruling. None of the factors enumerated in Victoria point in the direction of permitting relitigation. The Crown is simply looking for a second kick at the can, hoping for a different result. The defence submitted that the Crown is attempting to do exactly what s. 653.1 was intended to prevent.
23 For the purposes of the discussion that follows, I need to briefly describe Mr. [REDACTED]'s evidence as elicited on the voir dire.
24 Mr. [REDACTED] was questioned extensively about matters that were, at best, peripherally related to the impugned conversation involving Mr. [REDACTED] and [REDACTED]. The examination and cross-examination of Mr. [REDACTED] about the specific conversation in issue and the circumstances in which it took place was relatively limited.
25 Mr. [REDACTED] described being contacted, by phone or text, by Mr. [REDACTED]. He said Mr. [REDACTED] told him he needed to talk to him. He met with Mr. [REDACTED] and Mr. [REDACTED] at the back of Mr. [REDACTED]’s apartment building. They had a brief discussion.
26 During cross-examination, Mr. [REDACTED] denied that he was ever told by Mr. [REDACTED] or Mr. [REDACTED] to lie about what he witnessed. He said they actually told him to tell the truth. Moreover, he said the discussion about self-defence involved Mr. [REDACTED]'s interaction with an individual who had a stick and not with the deceased.
27 At the conclusion of the voir dire, the trial judge was left to grapple with two principal questions. First, whether Mr. [REDACTED]’s statements were hearsay. Second, whether there was a basis upon which the jury could reasonably conclude that Mr. [REDACTED] had adopted Mr. [REDACTED]'s statements by his silence. He ultimately answered yes to the first question and no to the second. He directed that no party could examine or cross-examine Mr. [REDACTED] about the purported conversation should he appear as a witness at trial.
28 To be clear, the rulings of the trial judge were of a type that could have been made prior to the commencement of evidence. Section 653.1 is engaged.
29 The Crown seeks leave to relitigate these same two questions. While it is true that the Crown did not expressly seek leave in its notice of application, no party to this proceeding was under the misapprehension that the Crown was not in fact seeking leave. The omission of a specific request for leave is non-dispositive.
30 Whether the Crown ought to be granted the leave it seeks requires, as I noted, an assessment of the cumulative force of all relevant factors.
31 The factors enumerated in Victoria offer little assistance to the Crown in its quest for leave. For instance, no new evidence will be tendered on the proposed rehearing. No new arguments will be advanced. There have been no changes in the legal principles governing the impugned rulings. The public interest in the timely and efficient conduct of criminal trial proceedings will not be enhanced.
32 The Crown conceded that its application stands or falls on the court's view of the legal correctness of the prior ruling.
33 It is not the function of this court to sit on appeal of prior rulings. Having said that, one can readily envision a situation where a prior ruling is patently legally wrong. It would certainly be contrary to the interests of justice to perpetuate that type of wrong in a misguided attempt to avoid relitigation.
34 The Victoria case provides a simple example. There, the judge presiding over the initial trial errantly gave a ruling on an issue that counsel had not yet argued. That ruling gave rise to a presumption of bias and a mistrial was declared. It would make no sense, in those circumstances, for the judge presiding at the retrial to order that the parties are bound by the earlier ruling, which was clearly wrong.
35 All that being said, with respect to the impugned rulings in this case, I am not satisfied that they are clearly wrong. In fact, though I differ somewhat in my view of the issues, I am satisfied that the rulings were sound.
36 My impression of the utterances in issue is that they are not hearsay. I do not share the original trial judge's characterization of them as such. To be fair, however, I have not received counsel's full submissions on the proper characterization of the utterances, so I will say no more about them. The fact is, the statements are not admissible in evidence against Mr. [REDACTED] because they were not made by him and there is no reasonable basis upon which to conclude that he adopted them by his silence.
37 The Crown tendered the statements as evidence of after-the-fact conduct of Mr. [REDACTED]. It appears to me that the suggestion is that Mr. [REDACTED], with the assistance of Mr. [REDACTED], attempted to persuade a witness to testify in a certain way; perhaps even to lie to assist Mr. [REDACTED].
38 The difficulty for the Crown is that the conduct was not that of Mr. [REDACTED]. Mr. [REDACTED] said the speaker was Mr. [REDACTED]. And in my view there is essentially no basis upon which to find that Mr. [REDACTED] adopted Mr. [REDACTED]’s statements by his silence.
39 Adoption by silence is a tricky little area of the law of evidence. Numerous authors have recommended that it must be approached cautiously. There is good reason for this. Before finding that an accused person adopted someone else's statements simply by remaining silent in the face of them requires the trier of fact to conclude that the circumstances were such that the accused would reasonably have been expected to speak out in some way: see R. v. F.(J.), 2011 ONCA 220, at para. 46.
40 How a person is expected to, or should, react in a given situation is not always a matter of common human experience and logic. Utterances may be made in unusual or stressful circumstances. The dynamics between or amongst the parties to a conversation may have an impact. Cultural differences may play a role. There are many factors that make conclusions about how a person is expected to react in a given situation difficult, if not dangerous, to make.
41 Crown counsel suggested that these are factual matters for the jury to sort out, with a proper instruction.
42 Justice David Watt has noted in Watt's Manual of Criminal Evidence (Toronto: Thomson Reuters, 2018) at para. 36.04 that the respective roles of the judge and jury in terms of adoption by silence are controversial. He suggests that the trial judge must make a preliminary determination as to whether there is any evidence of adoption by the accused person before the evidence may be adduced before the jury.
43 In this case, the evidence on offer is the presence of Mr. [REDACTED] at the time of the utterances and his silence in the face of them. These factors, standing alone, are not sufficient to support a finding of adoption. Moreover, there are at least two deep holes in the Crown's position in my view.
44 First, the law is not entirely settled yet as to whether non-accusatory statements are even capable of adoption by silence: see R. v. Robinson, 2014 ONCA 63, at para. 71.
45 Second, no factual basis has been established by the Crown to support the assertion that Mr. [REDACTED] could reasonably have been expected to respond to the utterances of Mr. [REDACTED]. They did not accuse him of anything. According to Mr. [REDACTED] there was no effort made to persuade him to do anything but tell the truth. Why would Mr. [REDACTED] be expected to effectively intervene in those circumstances?
46 The trial judge concluded that there was an absence of evidence to justify the contents of the conversation going before the jury. Not only am I unable to say that his conclusion was clearly wrong, but I agree with it. Not because it is tendered for a hearsay purpose, but because a proper foundation is lacking for a determination that Mr. [REDACTED], by his silence, adopted Mr. [REDACTED]’s statements.
47 In the result, there is no basis to conclude that it is in the interests of justice to permit the issue to be relitigated.
48 I will move on to the second ruling, involving the cross-examination of Mr. [REDACTED].
49 The trial judge ruled that Mr. [REDACTED], should he testify, could not be cross-examined by anyone about the conversation with Mr. [REDACTED]. The basis for the ruling is not articulated as clearly as it might have been had the trial judge had the luxury of time to hear further submissions and craft a further written ruling. By trial dynamics often do not afford such luxury.
50 What I perceive the trial judge to have ruled as a "dead issue" is (i) any suggestion that Mr. [REDACTED] was involved in pressuring Mr. to give any particular evidence; and (ii) any suggestion that Mr. [REDACTED] was involved in pressuring Mr. [REDACTED] to give any particular evidence.
51 The Crown again finds little in the factors enumerated in Victoria, to support its request to relitigate the issue. Again, its position is that the ruling is clearly wrong and the wrong ought not to be perpetuated. Again, I disagree.
52 I have no issue with the Crown or any other party questioning Mr. [REDACTED] about whether he has discussed the events in issue with any other witness, including Mr. [REDACTED]. That is a proper question and one that goes to the credibility and reliability of the witnesses' evidence. Discussions amongst witnesses may suggest collusion or at least conscious or unconscious tainting.
53 But to the extent that any cross-examination gets into the details of this particular impugned conversation, a significant risk arises that the trial judge's ruling will be encroached on.
54 Obviously any suggestion -- explicit or implied -- that Mr. [REDACTED] was complicit in any obstruction of justice in relation to this conversation is a "no fly zone" for the reasons set out.
55 Moreover, in my view, any suggestion to Mr. [REDACTED] that he actively attempted to persuade Mr. McBride to testify in a certain way would now be improper.
56 Cross-examiners have a wide latitude in terms of the areas they can test and the suggestions they can make. But they must have a good faith basis for their questions.
57 The issue of good faith cross-examination was addressed by the Supreme Court in R. v. Lyttle, 2004 SCC 5, where Fish and Major JJ. held, at para. 48:
...[A] "good faith basis" is a function of the information available to the cross-examiner, his or her belief in its likely accuracy, and the purpose for which it is used. Information falling short of admissible evidence may be put to the witness. In fact, the information may be incomplete or uncertain, provided the cross-examiner does not put suggestions to the witness recklessly or that he or she knows to be false. The cross-examiner may pursue any hypothesis that is honestly advanced on the strength of reasonable inference, experience or intuition. The purpose of the question must be consistent with the lawyer's role as an officer of the court; to suggest what counsel genuinely thinks possible on known facts or reasonable assumptions is in our view permissible; to assert or to imply in a manner that is calculated to mislead is in our view improper and prohibited.
58 In this instance, the Crown's own witness -- the purported target of Mr. [REDACTED]'s efforts -- specifically said he was not asked to lie about what he witnessed. Rather, he was told to tell the truth. In light of his testimony, there is no good faith basis to the suggestion that Mr. [REDACTED] did in fact did ask him to lie or to testify in a particular way.
59 There may be some aspects of the impugned conversation that remain proper areas to cross-examine on. But they would, in my view, be quite insignificant and not "worth the candle" in terms of the risk created that the trial judge's ruling would be encroached upon.
60 Ultimately, I see no basis upon which to conclude that the trial judge's ruling was clearly wrong. It follows that I am not satisfied that it is in the interests of justice to permit the matter to be relitigated.
61 In the result, the Crown's application is dismissed.
R.C. [REDACTED] J.