R. v. Greenwood (L.D.), 2014 NSCA 80

• Judge: Fichaud, Farrar and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 08, 2014
• Jurisdiction: Nova Scotia
• Citations: 2014 NSCA 80;(2014), 350 N.S.R.(2d) 315 (CA)

R. v. Greenwood (L.D.) (2014), 350 N.S.R.(2d) 315 (CA);

    1105 A.P.R. 315

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. SE.009

Leslie Douglas Greenwood (appellant) v. Her Majesty the Queen (respondent)

(CAC 393985; 2014 NSCA 80)

Indexed As: R. v. Greenwood (L.D.)

Nova Scotia Court of Appeal

Fichaud, Farrar and Bryson, JJ.A.

September 8, 2014.

Summary:

The accused admittedly went to the residence of the two victims with Lawrence. The victims were shot to death with two handguns. Lawrence admitted his guilt in the deaths before the accused's trial on two counts of first degree murder, but testified that they both shot the victims. The accused did not testify. His defence was an attack on the reliability and credibility of Lawrence (an "unsavoury witness" who had mental health issues and a memory problem) and his statements to police denying any involvement in the shooting. The accused's statement to police was that he was present for a drug pickup and had no knowledge that Lawrence possessed guns and planned on killing the victims. A jury convicted the accused of two counts of first degree murder. The accused appealed on the grounds that the trial judge erred (1) by delivering a review of the evidence that was unbalanced and favoured the Crown; (2) in failing to provide an adequate Vetrovec warning respecting Lawrence's testimony; (3) in admitting evidence (affidavit and vive voce) by Lawrence's counsel and providing no limiting instruction to the jury; and (4) in permitting the jury to hear inadmissible hearsay evidence by Lawrence's uncle, which evidence incriminated the accused.

The Nova Scotia Court of Appeal allowed the appeal, set aside the convictions, and ordered a new trial if the Crown so desired. The review of the evidence and the Vetrovec warning were adequate. However, the trial judge erred in admitting the evidence by the lawyer and the uncle. The court rejected the Crown's request to apply s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal notwithstanding the errors.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - Following a jury trial, the accused was convicted of two counts of first degree murder - He appealed, arguing that the trial judge prejudiced the accused by an unbalanced review of the evidence that favoured the Crown - Specifically, the accused argued that the trial judge omitted evidence supporting the accused and failed to properly instruct the jury on the exculpatory aspects of the accused's statement to police - The Nova Scotia Court of Appeal stated that the trial judge had a duty to review the substantial parts of the evidence and give the jury the theory of the defence - However, it was not necessary to review all of the evidence, as there was no duty to provide a charge that was a minute record of the evidence - The Crown called 18 witnesses - The accused did not testify - The "foundation of the defence" was to attack the credibility of the key Crown witness, an "unsavoury witness", and to argue that the accused's statement to police (denying involvement in the killings) should be believed - The review of the evidence set out the accused's version of events and his denial of any involvement - The jury charge also recited the accused's position that the evidence of the witness was unreliable (which the trial judge elaborated on with specifics), and later gave a Vetrovec warning - The court stated that "The recitation of evidence summarized the differing versions, and let the jury decide. The charge was not unfair." - See paragraphs 52 to 62.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - [See Criminal Law - Topic 5510 ].

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - [See Criminal Law - Topic 4352 ].

Criminal Law - Topic 4375.3

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior consistent statements - [See Evidence - Topic 1130 ].

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - [See Criminal Law - Topic 5045 ].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - The accused and Lawrence were charged with two counts of first degree murder in the shooting deaths of the two victims - Lawrence admitted shooting the victims and pleaded guilty - Lawrence testified at the accused's trial that they each had a handgun and both of them shot the victims - The accused did not testify - His defence was to challenge Lawrence's credibility and reliability - He also relied on his statement to police, in which he denied shooting the victims or having a gun - The accused said in his statement that he went with Lawrence to pick up drugs; that he had no knowledge of any plan to kill the victims - A jury convicted the accused - The trial judge, over the accused's objection, admitted an affidavit by Lawrence's lawyer to respond to the accused's submission that Lawrence, in an Agreed Statement of Fact on his sentencing, had admitted that he alone possessed the handguns - The affidavit submitted facts incriminating the accused - The Crown also played the accused's video-taped interrogation by police - Within that interrogation, the police played the video-tape of questioning of Lawrence's uncle (now deceased) - The uncle, not present at the shooting, stated that both the accused and Lawrence shot the victims - That evidence was admitted without a voir dire and without the trial judge conducting a balancing of probative value and prejudice to the accused, although a confusing instruction on the limited use of this evidence was later given - The Nova Scotia Court of Appeal held that the trial judge erred in admitting the evidence by the lawyer and the uncle - The Crown sought dismissal of the appeal under s. 686(1)(b)(ii) of the Criminal Code on the basis that the errors caused no substantial wrong or miscarriage of justice - The court rejected the application of the curative proviso - The convictions were set aside in favour of a new trial if the Crown so desired - A jury gave no reasons for its decision, so it was speculative to determine if the verdict would necessarily have been the same but for the errors - See paragraphs 150 to 160.

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - [See Evidence - Topic 1540 ].

Criminal Law - Topic 5214.9

Evidence and witnesses - Admissibility and relevancy - Voir dire - General - [See Evidence - Topic 1540 ].

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - The accused was charged with two counts of first degree murder in the execution style killing of the victims - Lawrence admitted shooting the victims, but testified that the accused also shot the victims - Lawrence, before the accused's trial, pleaded guilty to three counts of first degree murder (one the day before and not involving the accused) - The accused did not testify - His defence was to attack the reliability of Lawrence's evidence (long-time drug addict with mental health issues and an admitted memory problem) and the credibility of his testimony as an unsavoury witness - The accused also relied on his statement to police, which denied any involvement in the killing - In the statement, the accused admitted to being there with Lawrence to get drugs, but denied any knowledge of the plan to kill the victims - A jury convicted the accused of two counts of first degree murder - The accused appealed on the ground that the trial judge gave an inadequate Vetrovec warning respecting Lawrence's testimony - The Nova Scotia Court of Appeal held that the Vetrovec warning was adequate - The trial judge's "warning cautioned that it was risky to convict based only on Lawrence's evidence, though the jury could do so if satisfied that Lawrence was truthful, advised the jury to seek confirmatory evidence, and gave examples of potential confirmatory evidence" - See paragraphs 63 to 79.

Evidence - Topic 1130

Relevant facts - Relevance and materiality - Relevance of evidence offered - Prior consistent statements - The accused and Lawrence were charged with two counts of first degree murder in the shooting deaths of the two victims - Lawrence admitted shooting the victims and pleaded guilty - Lawrence testified at the accused's trial that they each had a handgun and both of them shot the victims - The accused did not testify - His defence was to challenge Lawrence's credibility and reliability - He also relied on his statement to police, in which he denied shooting the victims or having a gun - The accused said in his statement that he went with Lawrence to pick up drugs; that he had no knowledge of any plan to kill the victims - A jury convicted the accused - The trial judge, over the accused's objection, admitted an affidavit by Lawrence's lawyer to respond to the accused's submission that Lawrence, in an Agreed Statement of Fact on his sentencing, had admitted that he alone possessed the handguns - The affidavit submitted facts incriminating the accused - The trial judge gave no instruction to the jury on the limited use of the lawyer's affidavit or vive voce evidence (e.g., that lawyer had no personal knowledge of the events and that the evidence could not be used to confirm Lawrence's testimony) - On appeal, the accused argued that the lawyer's evidence constituted inadmissible oath-helping hearsay - The Nova Scotia Court of Appeal held that the lawyer's evidence was inadmissible - The lawyer's evidence of Lawrence's prior consistent statement was inadmissible, subject to the exception of rebuttal of an allegation of "recent fabrication", which did not apply - Even if the "recent fabrication" exception applied, the lawyer's evidence should still have been excluded as it was not limited to facts within the lawyer's personal knowledge - The lawyer's evidence of what Lawrence told him respecting the events in question was hearsay - Evidence entered for the truth of its contents must be limited to facts within the witness' personal knowledge - See paragraphs 80 to 120.

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - [See Evidence - Topic 1130 ].

Evidence - Topic 1540

Hearsay rule - Hearsay rule exceptions and exclusions - General - Procedure - Voir dire - The accused was charged with two counts of first degree murder - Lawrence admitted shooting the victims, but testified that the accused also shot the victims - Lawrence, before the accused's trial, pleaded guilty to the murders - The accused did not testify - His defence was to attack the reliability of Lawrence's evidence (long-time drug addict with mental health issues and an admitted memory problem) and the credibility of his testimony as an unsavoury witness - The Crown played the accused's video-taped interrogation by police - Within that interrogation, the police played the video-tape of questioning of Lawrence's uncle (now deceased) - The uncle, not present at the shooting, stated that both the accused and Lawrence shot the victims - That evidence was admitted without a voir dire and without the trial judge conducting a balancing of probative value and prejudice to the accused - After the jury heard the evidence, the trial judge had concerns and clearly instructed them not to use the uncle's evidence for the truth of its contents - However, there was an "attempt to identify for the jury some permissible use" - The Nova Scotia Court of Appeal held that the evidence was inadmissible - The uncle could not testify as to what happened at a murder scene at which he was not present - His statements implicating the accused in the shooting were "valueless" - The court stated that the trial judge erred by "(1) not holding a voir dire, or at least listening to the [uncle's] excerpts, before ruling on their admission; (2) not conducting a balance of probative value against potential prejudice; (3) not directing a redaction of the [uncle's] excerpts, and (4) giving the jury potentially conflicting instructions on the use of the [uncle's] excerpts." - See paragraphs 121 to 149.

Evidence - Topic 1626

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of deceased persons - General principles - [See Evidence - Topic 1540 ].

Evidence - Topic 4023

Witnesses - General - Credibility - Oath-helping - [See Evidence - Topic 1130 ].

Cases Noticed:

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4, refd to. [para. 54].

R. v. Daley - see R. v. W.J.D.

R. v. Thatcher, [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113, refd to. [para. 57].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 66].

R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205, refd to. [para. 66].

R. v. Kehler (R.A.), [2004] 1 S.C.R. 328; 317 N.R. 30; 346 A.R. 19; 320 W.A.C. 19, refd to. [para. 66].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31, refd to. [para. 66].

R. v. James (W.A.) et al., [2009] 1 S.C.R. 146; 383 N.R. 329; 273 N.S.R.(2d) 388; 872 A.P.R. 388, refd to. [para. 66].

R. v. Smith (N.W.) - see R. v. James (W.A.) et al.

R. v. Hurley (G.D.), [2010] 1 S.C.R. 637; 401 N.R. 232; 350 Sask.R. 1; 487 W.A.C. 1, refd to. [para. 66].

R. v. Stirling (B.J.), [2008] 1 S.C.R. 272; 371 N.R. 384; 251 B.C.A.C. 62; 420 W.A.C. 62, refd to. [para. 95].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198, refd to. [para. 95].

R. v. K.M.E., [2009] 2 S.C.R. 19; 389 N.R. 20; 272 B.C.A.C. 1; 459 W.A.C. 1, refd to. [para. 95].

R. v. Ward (S.C.) (2011), 307 N.S.R.(2d) 216; 975 A.P.R. 216; 2011 NSCA 78, dist. [para. 97].

R. v. Veinot (1983), 60 N.S.R.(2d) 436; 128 A.P.R. 436 (C.A.), refd to. [para. 112].

R. v. Pisani, [1971] S.C.R. 738, refd to. [para. 115].

R. v. Lyttle (M.G.), [2004] 1 S.C.R. 193; 316 N.R. 52; 184 O.A.C. 1, refd to. [para. 123].

R. v. Palmer (T.T.), [2010] O.A.C. Uned. 651; 2010 ONCA 804, refd to. [para. 123].

R. v. Mallory (R.) et al. (2007), 220 O.A.C. 239; 2007 ONCA 46, refd to. [para. 123].

R. v. M.C.H., [1998] 2 S.C.R. 449; 230 N.R. 1; 113 O.A.C. 97, refd to. [para. 134].

R. v. Hodgson - see R. v. M.C.H.

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 143].

R. v. Suzack (C.V.) (2000), 128 O.A.C. 140 (C.A.), refd to. [para. 143].

R. v. Charlebois (P.), [2000] 2 S.C.R. 674; 261 N.R. 239, refd to. [para. 153].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161, refd to. [para. 153].

R. v. Trochym (S.J.), [2007] 1 S.C.R. 239; 357 N.R. 201; 221 O.A.C. 281, refd to. [para. 153].

R. v. Jaw (S.G.), [2009] 3 S.C.R. 26; 393 N.R. 246; 464 A.R. 149; 467 W.A.C. 149, refd to. [para. 153].

R. v. O'Brien (M.D.), [2011] 2 S.C.R. 485; 417 N.R. 52; 304 N.S.R.(2d) 383; 960 A.P.R. 383, refd to. [para. 154].

R. v. Illes (M.), [2008] 3 S.C.R. 134; 380 N.R. 238; 260 B.C.A.C. 285; 439 W.A.C. 285, refd to. [para. 154].

R. v. C.J. (2011), 307 N.S.R.(2d) 200; 975 A.P.R. 200; 2011 NSCA 77, refd to. [para. 158].

Authors and Works Noticed:

Hill, S. Casey, Tanovich, David M., and Strezos, Louis P., McWilliams' Canadian Criminal Evidence - see McWilliams, Peter K., Canadian Criminal Evidence.

McWilliams, Peter K., Canadian Criminal Evidence (5th Ed.) (looseleaf), vol. 2, para. 11:40.10 [para. 9].

Counsel:

Ian R. Smith and Arghavan Gerami, for the appellant;

Jennifer A. MacLellan, for the respondent.

This appeal was heard on May 21, 2014, at Halifax, N.S., before Fichaud, Farrar and Bryson, JJ.A., of the Nova Scotia Court of Appeal.

On September 8, 2014, Fichaud, J.A., delivered the following judgment for the Court of Appeal.