R. v. Diu (A.B.) et al., (2000) 133 O.A.C. 201 (CA)

• Judge: Labrosse, Feldman and Sharpe, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 25, 2000
• Jurisdiction: Ontario
• Citations: (2000), 133 O.A.C. 201 (CA);2000 CanLII 4535 (ON CA);49 OR (3d) 40;144 CCC (3d) 481;33 CR (5th) 203;[2000] OJ No 1770 (QL);133 OAC 201;46 WCB (2d) 301

R. v. Diu (A.B.) (2000), 133 O.A.C. 201 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. MY.060

Her Majesty the Queen (respondent) v. A. Bau Diu (applicant/appellant)

(C26605)

Her Majesty the Queen (respondent) v. Chinh Troung Lam (applicant/appellant)

(C25597)

Indexed As: R. v. Diu (A.B.) et al.

Ontario Court of Appeal

Labrosse, Feldman and Sharpe, JJ.A.

May 25, 2000.

Summary:

The accused (Diu and Lam) were charged jointly on two counts of first degree murder and three counts of attempted murder after a shooting took place at a massage parlour. Two men died and two were seriously in­jured. Diu was convicted of one count of second degree murder and two counts of attempted murder. Lam was convicted of two counts of second degree murder and two counts of attempted murder. The accused were sentenced accordingly. The accused appealed their convictions.

The Ontario Court of Appeal allowed the appeals and ordered a new trial.

Criminal Law - Topic 56

General principles - Protection against self-incrimination - Comment at trial respecting accused's failure to testify - The accused, Lam and Diu, were charged jointly on two counts of first degree murder and three counts of attempted murder - Lam called his defence first and testified on his own behalf - When Diu subsequently testified, his testimony was not consistent with Lam's - Moreover, his assertions were not put to Lam by Diu's counsel in cross-examination - To remedy any prejudice to Lam, the trial judge gave Lam the oppor­tunity to reopen his case to respond to Diu's allegations - Lam declined - Lam was subsequently convicted of two counts of second degree murder and two counts of attempted murder - On appeal, Lam argued that the trial judge erred by telling the jury that he offered Lam the right to reopen his case - The Ontario Court of Appeal agreed - The trial judge should not have required Lam's counsel to make his election not to call further evidence in the jury's presence - Further, he should not have made any reference to Lam's election not to re-take the stand - See paragraphs 169 to 182.

Criminal Law - Topic 239

General principles - Statutory defences or exceptions - Self-defence - Lam and Diu, were involved in a fight at a massage parlour where two men were killed and two were seriously injured - Diu was convicted of one count of second degree murder and two counts of attempted mur­der - Diu appealed arguing, inter alia, that the trial judge erred when instructing the jury on the issue of self-defence - Par­ticularly, Diu asserted that the trial judge erred by failing to emphasize that s. 34(2) was available even where the accused was the initial aggressor - Failing that, he should have also put the self-defence pro­visions in s. 35 to the jury - The Ontario Court of Appeal reviewed the instruction and rejected this argument - See para­graphs 148 to 158.

Criminal Law - Topic 1285

Offences against person and reputation - Murder - Provocation - Jury charge - The accused, Lam and Diu, were involved in a fight at a massage parlour where two men were killed and two were seriously injured - Lam was convicted of two counts of second degree murder and two counts of attempted murder - Lam appealed arguing, inter alia, that the trial judge erred by telling the jury that Lam "asked" to have the defence of provocation put to the jury -The Ontario Court of Appeal agreed - "Where the trial judge puts a defence to the jury that has not been raised by the accused before the jury, the trial judge should ordinarily instruct the jury that the defence was not raised by the accused, but is one that he considers necessary to put to them. An instruction stating that the de­fence is being put at the request of the accused might well have the effect of undermining the defence advanced at trial by suggesting that the accused was advanc­ing alternative defences" - See paragraphs 159 to 168.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - [See Criminal Law - Topic 1285 ].

Criminal Law - Topic 4370

Procedure - Charge or directions - Jury or judge alone - Directions regarding self-defence - [See Criminal Law - Topic 239 and first Criminal Law - Topic 5528 ].

Criminal Law - Topic 4377.2

Procedure - Charge or directions - Jury or judge alone - Directions regarding charac­ter of victim - [See both Criminal Law - Topic 5528 ].

Criminal Law - Topic 4392

Procedure - Charge or directions - Jury or judge alone - Directions re inferences of guilt (incl. consciousness of guilt) - The accused, Lam and Diu, were involved in a fight at a massage parlour where two men were killed and two were seriously injured - Diu was convicted of one count of sec­ond degree murder and two counts of attempted murder - Lam was convicted of two counts of second degree murder and two counts of attempted murder - The accused appealed their convictions, argu­ing, inter alia, that the trial judge erred when instructing the jury on the permis­sible uses of evidence regarding their after-the-fact conduct - For example, Diu fled the scene, concealed the weapons, did not readily surrender and alleged that he was not the shooter - Lam also fled the scene, sent two different people to retrieve his jeep, disposed of the clothes he wore dur­ing the shooting, put the two guns in a bag for disposal and hid from the police for several weeks - The Ontario Court of Appeal agreed that the instruction was flawed - Particularly, the trial judge, should have cautioned the jury as to the limited use the after-the-fact conduct could be used - See paragraphs 113 to 132.

Criminal Law - Topic 4394

Procedure - Charge or directions - Jury or judge alone - Directions re inferences from failure to call evidence - [See Criminal Law - Topic 56 ].

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - [See Criminal Law - Topic 4392 and Criminal Law - Topic 5316 ].

Criminal Law - Topic 5035

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - General - The Ontario Court of Appeal stated that when "determining whether there has been no substantial wrong or miscarriage of justice, as a result of an error at trial, an appellate court is to ask whether 'the verdict would necessarily have been the same if such error had not occurred' ... or 'whether there is any reasonable possibility that the verdict would have been different had the error at issue not been made' ... Section 686(1)(b)(iii) does not allow an appellate court to 'retry the case to assess the worth of the residual evidence after the improper­ly adduced evidence has been extracted from the record'" - See paragraph 192.

Criminal Law - Topic 5204.3

Evidence and witnesses - General - Ad­missibility - Evidence of disposition or propensity of accused - [See both Crim­inal Law - Topic 5510 ].

Criminal Law - Topic 5313.01

Evidence and witnesses - Inferences - From consciousness of guilt - [See Crim­inal Law - Topic 4392 ].

Criminal Law - Topic 5316

Evidence and witnesses - Inferences - Of guilt - From conduct - The Ontario Court of Appeal discussed when an accused's conduct after a crime had been committed could provide circumstantial evidence of the accused's culpability with respect to the crime - The court stated that generally "the trial judge should instruct the jury that the evidence of the accused's after-the-fact conduct has only an indirect bearing upon the issue of guilt, and that the jury should exercise caution in inferring guilt because the conduct might be explained in an alternative manner" - See paragraphs 119 to 121.

Criminal Law - Topic 5316.1

Evidence and witnesses - Inferences - Of guilt - From fleeing crime scene - [See Criminal Law - Topic 4392 ].

Criminal Law - Topic 5476

Evidence and witnesses - Joint or separate trials - Admissibility of evidence of dis­position or propensity of co-accused - [See both Criminal Law - Topic 5510 ].

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices - Warning to jury of danger of reliance on - The Ontario Court of Appeal stated that where bad character evidence was adduced by one accused to show propensity (i.e., that the co-accused is the type of person more likely to have com­mitted the crime), the trial judge must include a special instruction in the jury charge - "This instruction should contain both positive and negative aspects, which are equally important, telling the jury the use the jury may make of the evidence of propensity and the use the jury may not make of such evidence. The positive aspect is that evidence of bad character can be used by the accused leading the evidence ... to raise a reasonable doubt as to that accused's guilt on the basis that the bad character of the other accused ... suggests a propensity of that accused to commit the offence. The negative aspect is that bad character evidence cannot be used by the jury when considering whether the Crown has proved its case against the other ac­cused. ..." - See paragraph 139.

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices - Warning to jury of danger of reliance on - The Ontario Court of Appeal stated that where bad character evidence was adduced by one accused to show propensity (i.e., that the co-accused is the type of person more likely to have com­mitted the crime), the trial judge "should still give the classic instruction on the use of an accused's criminal record. However, this must be followed by the 'positive' and 'negative' instruction on the use of bad character evidence that makes it clear what can be used by the co-accused and what can be used by the Crown" - See para­graph 146.

Criminal Law - Topic 5528

Evidence and witnesses - Testimony re­specting the victim - Character of victim -The accused, Lam and Diu, were involved in a fight at a massage parlour where two men were killed and two were seriously injured - Diu was convicted of one count of second degree murder and two counts of attempted murder - Lam was convicted of two counts of second degree murder and two counts of attempted murder - The accused appealed their convictions, argu­ing, inter alia, that the trial judge erred by admitting evidence of the peaceful disposi­tions of the deceased men - Particularly, the accused asserted that peaceful disposi­tion evidence was not admissible to rebut the defence of self-defence unless the accused had affirmatively attacked the deceased's character - Further, the accused asserted that even if the evidence was admissible, the trial judge erred in al­lowing it to be called in reply - Finally, the accused argued that the evidence should have been excluded because it had no probative value and its prejudicial effect was significant - The Ontario Court of Appeal reviewed when such evidence should be allowed and agreed with this argument - See paragraphs 30 to 58.

Criminal Law - Topic 5528

Evidence and witnesses - Testimony re­specting the victim - Character of victim - The Ontario Court of Appeal stated that generally, the character of a victim of a crime was irrelevant and neither the ac­cused nor the Crown could lead such evidence - Nonetheless, in certain cir­cumstances such evidence was allowed - The court then reviewed the authorities regarding when such evidence should be allowed and concluded that no clear rules had been laid down - "It is, however, well established as a general proposition that there is no rule excluding evidence of the disposition of a third party, provided that such evidence is relevant. Once that basic proposition is accepted, it seems to me that the question becomes one of assessing the relevance of the disposition evidence to the issues raises, and if the evidence is rele­vant, ensuring that its probative value outweighs its prejudicial effect" - In this case, the court concluded that the prejudi­cial effect of the evidence outweighed its probative value and therefore it should not have been admitted - See paragraphs 30 to 56.

Evidence - Topic 336

Circumstantial evidence - Evidence of consciousness of guilt - [See Criminal Law - Topic 4392 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - Lam and Diu stole money from patrons at a massage parlour - A fight broke out, guns were shot - Two men were killed and two were seriously injured - Diu was convicted of one count of second degree murder and two counts of attempted murder - Lam was convicted of two counts of second degree murder and two counts of attempted mur­der - The accused appealed their convic­tions, arguing, inter alia, that the trial judge erred by failing to admit Tien's (one of the injured victims) videotaped state­ment for the truth of its contents - The videotape was made nearly two years after the shooting and after Tien had spoken with other witnesses to the shooting - The Ontario Court of Appeal rejected this argument - Although the trial judge erred in concluding that the statement did not meet the reliability test, he did not err in concluding that it did not meet the necessi­ty requirement - Consequently, the court agreed that the statement should not have been admitted for the truth of its contents -See paragraphs 94 to 110.

Evidence - Topic 4751

Witnesses - Examination - Prior inconsis­tent statements - Use of and effect of use of - The accused, Lam and Diu, were involved in a fight at a massage parlour where two men were killed and two were seriously injured - Diu was convicted of one count of second degree murder and two counts of attempted murder - Lam was convicted of two counts of second degree murder and two counts of attempted mur­der - The accused appealed their convic­tions, arguing, inter alia, that the trial judge erred by admitting Dao's (one of the injured victims) videotaped statement for the truth of its contents where Dao com­pletely changed his testimony at trial - The Ontario Court of Appeal reviewed the authorities regarding the admissibility of prior inconsistent statements and agreed that the statement should not have been admitted for the truth of its contents - See paragraphs 57 to 93.

Evidence - Topic 4751

Witnesses - Examination - Prior inconsis­tent statements - Use of and effect of use of - The Ontario Court of Appeal stated that "[u]ntil recently, prior inconsistent statements were only admissible for the purpose of impeaching the credibility of a witness. Unless the witness adopted the statement at trial, the prior statement was not admissible to establish the truth of its contents. The basis for the exclusionary rule was that the prior statement is hearsay. The evidentiary danger associated with hearsay statements are the absence of oath or affirmation, the inability to assess the declarant's demeanour, and the lack of contemporaneous cross-examination. It is now firmly established that where the prior statement meets the twin tests of necessity and reliability, the danger of hearsay evi­dence may be avoided and the statement may be received for the truth of its con­tents. ... The reliability inquiry turns from a recognition of the dangers inherent in hearsay evidence to a search of indicia of reliability which provide a sufficient safe­guard of the trustworthiness of the state­ment to overcome the concerns arising out of those dangers" - See paragraph 68.

Cases Noticed:

R. v. Clarke (H.E.) (1998), 112 O.A.C. 233 (C.A.), refd to. [para. 39].

R. v. Scopelliti (1981), 63 C.C.C.(2d) 481 (Ont. C.A.), refd to. [para. 40].

R. v. Watson (K.S.) (1996), 92 O.A.C. 131; 108 C.C.C.(3d) 310 (C.A.), refd to. [para. 41].

R. v. Sims (1994), 87 C.C.C.(3d) 402 (B.C.C.A.), refd to. [para. 41].

R. v. McMillan, [1977] 2 S.C.R. 824; 15 N.R. 20, refd to. [para. 41].

R. v. Soares (1987), 19 O.A.C. 97; 34 C.C.C.(3d) 403 (C.A.), refd to. [para. 42].

R. v. DeJong (J.M.) (1998), 108 B.C.A.C. 126; 176 W.A.C. 126; 125 C.C.C.(3d) 302 (C.A.), refd to. [para. 46].

R. v. Wood (1951), 35 Cr. App. Rep. 61 (Cir. Ct.), refd to. [para. 47].

R. v. Johnson (1965), 5 N.S.R. 1965-69 696; 49 C.R. 176 (C.A.), refd to. [para. 47].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321, refd to. [para. 50].

R. v. Krause, [1986] 2 S.C.R. 466; 71 N.R. 61; 29 C.C.C.(3d) 385, refd to. [para. 55].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257, refd to. [para. 58].

R. v. T.T. and S.L. (1997), 103 O.A.C. 15; 117 C.C.C.(3d) 481 (C.A.), refd to. [para. 68].

R. v. F.J.U., [1995] 3 S.C.R. 764; 186 N.R. 365; 85 O.A.C. 321; 42 C.R.(4th) 133; 101 C.C.C.(3d) 97, refd to. [para. 70].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, refd to. [para. 71].

R. v. Smith (A.L.) (1992), 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(2d) 257 (S.C.C.), refd to. [para. 71].

R. v. Conway (J.) et al. (1997), 106 O.A.C. 81; 36 O.R.(3d) 579 (C.A.), refd to. [para. 76].

R. v. Merz (H.J.) (1999) 127 O.A.C. 1; 46 O.R.(3d) 161 (C.A.), refd to. [para. 83].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1; 125 C.C.C.(3d) 385, refd to. [para. 119].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 117 C.C.C.(3d) 226 (C.A.), refd to. [para. 119].

R. v. Minhas (1986), 16 O.A.C. 42; 29 C.C.C.(3d) 193 (C.A.), refd to. [para. 120].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26; 87 C.C.C.(3d) 289, refd to. [para. 120].

R. v. Jenkins (E.) et al. (1996), 90 O.A.C. 263; 107 C.C.C.(3d) 440 (C.A.), leave to appeal refused (1997), 210 N.R. 320; 100 O.A.C. 399 (S.C.C.), refd to. [para. 120].

Gudmondson v. R. (1933), 60 C.C.C. 332 (S.C.C.), refd to. [para. 121].

R. v. Wiltse (J.W.) and Yarema (M.W.) (1994), 72 O.A.C. 226; 19 O.R.(3d) 379 (C.A.), refd to. [para. 130].

R. v. Laurier (1983), 1 O.A.C. 128 (C.A.), refd to. [para. 134].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 64 C.R.(3d) 1; 41 C.C.C.(3d) 385, refd to. [para. 134].

R. v. Kendall and McKay (1987), 20 O.A.C. 134; 35 C.C.C.(3d) 105 (C.A.), refd to. [para. 137].

R. v. Suzack (C.V.) (2000), 128 O.A.C. 140 (C.A.), refd to. [para. 137].

R. v. Valentini (D.) et al. (1999), 118 O.A.C. 1; 132 C.C.C.(3d) 262 (C.A.), refd to. [para. 137].

R. v. Farrell, [2000] O.J. No. 1376 (C.A.), refd to. [para. 137].

R. v. McNamara (No. 1) (1981), 56 C.C.C.(2d) 193 (Ont. C.A.), refd to. [para. 145].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81; 95 C.C.C.(3d) 481, refd to. [para. 151].

R. v. Nelson (1992), 54 O.A.C. 14; 71 C.C.C.(3d) 449 (C.A.), refd to. [para. 152].

R. v. Elkins (M.R.) (1995), 86 O.A.C. 125; 26 O.R.(3d) 161 (C.A.), refd to. [para. 152].

R. v. Pintar (J.) (1996), 93 O.A.C. 172; 110 C.C.C.(3d) 402 (C.A.), refd to. [para. 154].

R. v. Tombran (T.) (2000), 129 O.A.C. 51 (C.A.), refd to. [para. 166].

Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 171].

R. v. S.G.G., [1997] 2 S.C.R. 716; 214 N.R. 161; 94 B.C.A.C. 81; 152 W.A.C. 81; 116 C.C.C.(3d) 193, refd to. [para. 177].

R. v. Miller (M.) (1998), 116 O.A.C. 331; 131 C.C.C.(3d) 141 (C.A.), refd to. [para. 179].

R. v. Potvin, [1989] 1 S.C.R. 525; 93 N.R. 42; 21 Q.A.C. 258; 47 C.C.C.(3d) 289, refd to. [para. 179].

McConnell and Beer v. R., [1968] 4 C.C.C. 257 (S.C.C.), refd to. [para. 179].

R. v. McNeil (S.) (2000), 131 O.A.C. 346 (C.A.), refd to. [para. 181].

Colpitts v. R., [1966] 1 C.C.C. 146, refd to. [para. 192].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165; 82 C.C.C.(3d) 310, refd to. [para. 192].

R. v. John (1985), 63 N.R. 141; 11 O.A.C. 391; 23 C.C.C.(3d) 326 (S.C.C.), refd to. [para. 192].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 4(6) [para. 172].

Criminal Code, R.S.C. 1985, c. C-46, sect. 35 [para. 150].

Evidence Act (Can.) - see Canada Evi­dence Act.

Authors and Works Noticed:

Wigmore on Evidence (Tillers Rev. 1983), vol. 1A, pp. 1369, 1372, 1373 [para. 42].

Counsel:

Michael Code and Leslie Paine, for the appellant, Diu;

James Lockyer and P. Andras Schreck, for the appellant, Lam;

Susan G. Ficek, for the respondent.

These appeals were heard on February 28, 29 and March 1, 2000, by Labrosse, Feld­man and Sharpe, JJ.A., of the Ontario Court of Appeal.

The following decision of the Court of Appeal was delivered by Sharpe, J.A., on May 25, 2000.