R. v. Mallory (R.) et al., (2007) 220 O.A.C. 239 (CA)

• Judge: Sharpe, Simmons and Lang, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 01, 2006
• Jurisdiction: Ontario
• Citations: (2007), 220 O.A.C. 239 (CA);2007 ONCA 46;217 CCC (3d) 266;[2007] OJ No 236 (QL);220 OAC 239;72 WCB (2d) 792

R. v. Mallory (R.) (2007), 220 O.A.C. 239 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. JA.055

Her Majesty the Queen (respondent) v. Richard Mallory and Robert Stewart (appellants)

(C34059; C34060)

Indexed As: R. v. Mallory (R.) et al.

Ontario Court of Appeal

Sharpe, Simmons and Lang, JJ.A.

January 26, 2007.

Summary:

Mallory was convicted of two counts of second degree murder and Stewart was convicted of two counts of first degree murder. The accused appealed their convictions, raising numerous grounds of appeal.

The Ontario Court of Appeal allowed the appeals, set aside the convictions and ordered new trials. The court did not consider it necessary to decide which grounds of appeal, standing alone, would require a new trial. In view of the number and gravity of the errors found by the court, there was no basis for applying the proviso.

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - An accused, Mallory, appealed his murder convictions, arguing that the trial judge erred in admitting certain statements made by the accused upon his arrest - The statements were made to a police officer on route to the police station - The accused had been cautioned and indicated that he did not want to speak to a lawyer at that time, but would do so at the police station - The trial judge ruled that the police officer violated the accused's s. 10(b) Charter rights by failing to hold off in questioning him during the 12 minutes it took to transport him to the police station; however, the trial judge refused to exclude the statements under s. 24(2) - The Ontario Court of Appeal held that the trial judge was correct in holding that the accused's s. 10(b) rights were violated, but that the judge erred in finding that Mallory's statements were non-conscriptive - The court stated that since the accused's statements were the product of questions from a police officer rather than being spontaneous, it was clear that they amounted to conscriptive evidence - However, since the court was ordering a new trial based on other grounds of appeal, it left the issue of a fresh s. 24(2) Charter analysis for the new trial - See paragraphs 113 to 123.

Civil Rights - Topic 4609.1

Right to counsel - Duty of police investigators - [See Civil Rights - Topic 4604 ].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - The accused appealed their murder convictions, arguing that the cumulative effect of certain conduct by the trial judge created a reasonable apprehension of bias and that the trial judge erred in failing to recuse himself when asked to do so - The Ontario Court of Appeal examined the impugned conduct but declined to give effect to this ground of appeal - The court stated that it would have been preferable had the trial judge not engaged in at least some of the conduct about which the accused complained - However, on the facts of this case, the court held that the cumulative effect of the impugned conduct did not rise to the level necessary to establish a reasonable apprehension of bias - Accordingly, the trial judge made no error in failing to recuse himself - See paragraphs 301 to 329.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The accused appealed their murder convictions, asserting that the trial judge gave an inadequate Vetrovec warning respecting three Crown witnesses, one of whom was an accomplice and the other two jailhouse informants - The Ontario Court of Appeal reviewed the Vetrovec caution given in this case, holding that it was inadequate - The trial judge erred in law by failing to explain the reasons for the need for special scrutiny and in failing to give a sufficiently strong warning about the danger of acting on the unconfirmed evidence of the unsavoury witnesses in this particular case - See paragraphs 32 to 70.

Criminal Law - Topic 4405

Procedure - Open and closing addresses - Summing up - Counsel - Opening address - Improper remarks - The accused appealed their murder convictions, alleging that the Crown's opening and closing addresses were improper, inflammatory, and that they rendered the trial unfair - The accuseds' trial counsel objected to both addresses but the trial judge refused to grant a mistrial or provide the jury with a corrective instruction - The Ontario Court of Appeal held that the trial judge did not necessarily err in failing to declare a mistrial after the Crown opening, but the opening address of Crown counsel called for corrective action by the trial judge - The court stated that in light of the numerous other errors cited by the court in this case, it was not necessary for the court to pronounce definitively upon the effect of the Crown's rhetorical excesses - The court stated that it sufficed to say that certain passages from the Crown's opening and closing were inappropriate and, at a minimum, the trial judge should have given a corrective instruction to redress the imbalance it created and to alleviate the risk that the jury might be improperly influenced - See paragraphs 330 to 345.

Criminal Law - Topic 4419

Procedure - Open and closing addresses - Summing up - Counsel - Closing address - Intemperate or improper statements - [See Criminal Law - Topic 4405 ].

Criminal Law - Topic 4867

Appeals - Indictable offences - Grounds of appeal - Bias - [See Courts - Topic 691 ].

Criminal Law - Topic 5339.3

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Portions of statement - [See Criminal Law - Topic 5343 ].

Criminal Law - Topic 5343

Evidence and witnesses - Confessions and voluntary statements - Exculpatory statements by accused - The accused, Stewart, appealed his murder convictions, arguing that the trial judge erred in editing transcripts of statements made by the accused to a jailhouse informant, by excluding the accused's exculpatory statements and leaving in his inculpatory statements - The Ontario Court of Appeal held that the trial judge erred in approaching the utterances as a series of separate statements rather than as one statement - The meaning of an exculpatory utterance proximate to an inculpatory utterance was for the jury to determine in the context of the whole statement - Accordingly the court stated that it would give effect to this ground of appeal - See paragraphs 186 to 211.

Criminal Law - Topic 5416

Evidence and witnesses - Witnesses - Cross-examination of Crown witnesses - The accused appealed their murder convictions, arguing that the trial judge erred by limiting the cross-examination of a Crown witness, and accomplice, on newspaper articles that the accused contended served as the source of his story to the police and for his testimony at trial - The Ontario Court of Appeal stated that while it would have been preferable to have given defence counsel more latitude, the trial judge did not exceed the limits of his discretion by limiting what was bound to be a repetitive and unproductive cross-examination on newspaper articles that the witness insisted he had never seen - See paragraphs 106 to 111.

Criminal Law - Topic 5433

Evidence and witnesses - Cross-examination of accused - Respecting inculpatory statements - An accused, Stewart, appealed his murder convictions, arguing that the trial judge erred in failing to impose limits on the Crown's proposed cross-examination - Prior to deciding whether Stewart would testify, his trial counsel had sought a ruling regarding the scope of the Crown's proposed cross-examination - The defence sought to prohibit the Crown from cross-examining Stewart on inculpatory out-of-court utterances he purportedly made to certain unsavoury witnesses, including jailhouse informants, whom the Crown chose not to call in its case - The trial judge rejected this request and declined to impose limits on the Crown's cross-examination - The Ontario Court of Appeal accepted the accused's argument that the trial judge erred in his ruling - See paragraphs 212 to 271.

Criminal Law - Topic 5440.1

Evidence and witnesses - Cross-examination of accused - Re testimony at bail hearing - The accused, Mallory, appealed his murder convictions, alleging that the trial judge erred in allowing him to be cross-examined about evidence he gave at his bail hearing - Mallory gave evidence at trial that contradicted the evidence he gave at his bail hearing, both about his activities as an enforcer and about his relationship with his co-accused - At trial, over the objection of his counsel, the Crown cross-examined him on those contradictions - In that cross-examination, Mallory admitted to lying at his bail hearing - The Crown used these admissions to attack Mallory's overall credibility - Mallory argued that s. 518(1)(b) of the Criminal Code prohibited the Crown from cross-examining him "respecting the offence" at his bail hearing and that cross-examination on the answers he gave should therefore have been prohibited at trial - The Ontario Court of Appeal held that the trial judge did not err in allowing the Crown to cross-examine Mallory about his bail testimony on the issue of his credibility - Accordingly, the court did not give effect to this ground of appeal - See paragraphs 157 to 185.

Criminal Law - Topic 5442

Evidence and witnesses - Testimony respecting the accused - Antecedents or history of accused - The accused appealed their murder convictions, asserting that the trial judge erred in admitting a considerable volume of narrative evidence led by the Crown relating to the police investigation, particularly from the lead detective, to rebut an attack on the integrity of the investigation by the defence - The detective was examined, cross-examined and re-examined - The Crown was able to adduce a considerable amount of investigative hearsay, including evidence that one of the accused had a prior manslaughter conviction - The trial judge provided limiting instructions about the admissibility and limited use of hearsay evidence elicited from the lead detective and repeated his instruction as to the limited use of hearsay evidence in his jury charge - However, some of the hearsay evidence found its way into the trial judge's summary of the evidence without any accompanying instruction as to its permitted use - The Ontario Court of Appeal concluded that the convictions had to be set aside and a new trial ordered on the basis of numerous other grounds of appeal and therefore did not find it necessary to consider that body of evidence in detail - However, the court offered a number of observations on the issue of investigative hearsay and in particular the evidence of the manslaughter conviction - The court opined that the trial judge erred by permitting the Crown to lead evidence of the manslaughter conviction - See paragraphs 71 to 105.

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - [See Criminal Law - Topic 4354 ].

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - The accused, Mallory, appealed his murder convictions, alleging that the trial judge erred by permitting the Crown to lead reply evidence that, contrary to Mallory's assertion that he was preparing to surrender himself once he learned that he was wanted by the police, he was in fact evading the police at the time of his arrest - The accused took particular exception to a police officer's evidence given in reply that the accused had admitted to his girlfriend that he had a role in the murders - The Ontario Court of Appeal stated that even if the Crown was entitled to lead reply evidence relating to the circumstances of the arrest, the court failed to see any basis for the admission of the hearsay evidence to the effect that the accused had admitted a role in the murders to his girlfriend - The court held that while a mid-trial instruction by the trial judge respecting the use that could be made of the hearsay evidence went some way to repair the damage, in the end, the court was of the view that this evidence was gravely prejudicial inadmissible hearsay evidence that the jury should never have heard - Accordingly, the court held that it would give effect to this ground of appeal - See paragraphs 147 to 156.

Evidence - Topic 1528.2

Hearsay rule - Hearsay rule exceptions and exclusions - Investigative hearsay led to rebut defence attack on adequacy of police investigation - [See Criminal Law - Topic 5442 ].

Evidence - Topic 4023

Witnesses - Credibility - Oath helping - The accused appealed their murder convictions, arguing that the trial judge erred in admitting "oath-helping" evidence relating to a jailhouse informant - The accused argued that the Crown improperly bolstered the informant's otherwise suspect evidence in examination-in-chief by eliciting evidence about the informant's rehabilitation - Also his statements were marked as a lettered exhibit at trial and the jury was provided with a transcript of his evidence - Further, the Crown elicited evidence from the informant that, as a result of the information the informant gave the police, other individuals had been convicted of serious crimes and received significant sentences - The accused also submitted that the prejudice occasioned by this evidence was not remedied by the mid-trial caution given to the jury - The Ontario Court of Appeal stated that it would give effect to this ground of appeal - See paragraphs 272 to 300.

Cases Noticed:

R. v. Sauvé and Trudel - see R. v. Sauvé (J.) et al.

R. v. Sauvé (J.) et al. (2004), 182 O.A.C. 58; 182 C.C.C.(3d) 321 (C.A.), leave to appeal refused (2005), 336 N.R. 195; 204 O.A.C. 395 (S.C.C.), refd to. [para. 2].

R. v. Zebedee (J.) et al. (2006), 212 O.A.C. 23 (C.A.), refd to. [para. 44].

R. v. Dhillon (S.) (2002), 161 O.A.C. 231; 166 C.C.C.(3d) 262 (C.A.), refd to. [para. 85].

R. v. Proverbs (1983), 2 O.A.C. 98; 9 C.C.C.(3d) 249 (C.A.), refd to. [para. 111].

R. v. McIntosh (C.) (1999), 128 O.A.C. 69; 141 C.C.C.(3d) 97 (C.A.), refd to. [para. 111].

R. v. Dunn (1993), 82 C.C.C.(3d) 1 (Ont. C.A.), refd to. [para. 111].

R. v. Orbanski (C.); R. v. Elias (D.J.) (2005), 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 196 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 121].

R. v. Grant (2006), 213 O.A.C. 127; 209 C.C.C.(3d) 250 (C.A.), refd to. [para. 121].

R. v. Henry (D.B.) et al. (2005), 342 N.R. 259; (2005), 219 B.C.A.C. 1 ; 361 W.A.C. 1; 202 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 171].

R. v. Deom (1981), 64 C.C.C.(2d) 222 (B.C.S.C.), refd to. [para. 175].

R. v. Paonessa and Paquette (1982), 66 C.C.C.(2d) 300 (Ont. C.A.), affd. (1983), 3 C.C.C.(3d) 384 (S.C.C.), refd to. [para. 175].

R. v. Girvin (1916), 27 C.C.C. 265 (Alta. S.C.), refd to. [para. 204].

R. v. Belanger (1975), 24 C.C.C.(2d) 10 (Ont. C.A.), refd to. [para. 205].

R. v. Humphrey (K.) (2003), 169 O.A.C. 49; 172 C.C.C.(3d) 332 (C.A.), refd to.[para. 205].

R. v. Lynch (1988), 30 O.A.C. 49 (C.A.), refd to. [para. 205].

R. v. Black and Mackie, [1966] 3 C.C.C. 187 (Ont. C.A.), refd to. [para. 205].

R. v. Smith (G.A.) (1986), 71 N.S.R.(2d) 229; 171 A.P.R. 229 (C.A.), refd to. [para. 205].

R. v. Bihun, [1965] 4 C.C.C. 45 (Man. C.A.), refd to. [para. 205].

R. v. Cybulski (1974), 19 C.C.C.(2d) 560 (Man. C.A.), refd to. [para. 206].

R. v. Kutynec (1992), 52 O.A.C. 59; 70 C.C.C.(3d) 289 (C.A.), refd to. [para. 214].

R. v. Howard, [1989] 1 S.C.R. 1337; 96 N.R. 81; 34 O.A.C. 81; 48 C.C.C.(3d) 38, refd to. [para. 217].

R. v. Lyttle (M.G.) (2004), 316 N.R. 52; 184 O.A.C. 1; 180 C.C.C.(3d) 476 (S.C.C.), refd to. [para. 217].

Boucher v. R. (1954), 110 C.C.C. 263 (S.C.C.), refd to. [para. 235].

R. v. Wilson (1983), 5 C.C.C.(3d) 61 (B.C.C.A.), refd to. [para. 253].

R. v. Dixon (1984), 16 C.C.C.(3d) 43 (B.C.C.A.), refd to. [para. 253].

R. v. C.D. (2000), 132 O.A.C. 331; 145 C.C.C.(3d) 290 (C.A.), refd to. [para. 253].

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1; 18 C.R.(4th) 261; 79 C.C.C.(3d) 112, refd to. [para. 278].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C.(3d) 193, refd to. [para. 278].

R. v. Llorenz (A.G.) (2000), 132 O.A.C. 201; 145 C.C.C.(3d) 535 (C.A.), refd to. [para. 279].

R. v. A.K. and N.K. (1999), 125 O.A.C. 1; 45 O.R.(3d) 641; 137 C.C.C.(3d) 225 (C.A.), refd to. [para. 279].

R. v. Clarke, [1981] 6 W.W.R. 417; 32 A.R. 92; 63 C.C.C.(2d) 224 (C.A.), refd to. [para. 286].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241; 118 C.C.C.(3d) 353, refd to. [para. 318].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115; 68 D.L.R.(3d) 716, refd to. [para. 318].

R. v. Gushman, [1994] O.J. No. 813 (Gen. Div.), refd to. [para. 318].

R. v. Bjellebo (E.S.) et al. (2003), 177 O.A.C. 378 (C.A.), refd to. [para. 322].

R. v. Cook (D.W.), [1997] 1 S.C.R. 1113; 210 N.R. 197; 188 N.B.R.(2d) 161; 480 A.P.R. 161; 114 C.C.C.(3d) 481, reving. (1996), 178 N.B.R.(2d) 38; 454 A.P.R. 38; 107 C.C.C.(3d) 334; 49 C.R.(4th) 17 (C.A.), refd to. [para. 337].

R. v. Griffin, [1993] O.J. No. 2573 (Gen. Div.), refd to. [para. 338].

R. v. Porter, [1992] O.J. No. 2931 (Gen. Div.), refd to. [para. 338].

R. v. Sun, [2002] O.J. No. 2166 (Sup. Ct.), refd to. [para. 338].

R. v. White, [1997] O.J. No. 5899 (Gen. Div.), refd to. [para. 338].

R. v. Baltrusaitis (V.C.) (2002), 155 O.A.C. 249; 58 O.R.(3d) 161 (C.A.), refd to. [para. 339].

R. v. Daly (1992), 57 O.A.C. 70 (C.A.), refd to. [para. 339].

R. v. Grover, [1991] 3 S.C.R. 387; 131 N.R. 80; 50 O.A.C. 185; 67 C.C.C.(3d) 576, reving. (1990), 38 O.A.C. 219; 56 C.C.C.(3d) 532 (C.A.), refd to. [para. 340].

R. v. Romeo (1991), 119 N.R. 309; 110 N.B.R.(2d) 57; 276 A.P.R. 57; 62 C.C.C.(3d) 1 (S.C.C.), reving (1989), 93 N.B.R.(2d) 332; 238 A.P.R. 332; 47 C.C.C.(3d) 113 (C.A.), refd to. [para. 340].

R. v. Munroe (R.A.) (1995), 79 O.A.C. 41; 96 C.C.C.(3d) 431 (C.A.), affd. [1995] 4 S.C.R. 53; 189 N.R. 87; 86 O.A.C. 384; 102 C.C.C.(3d) 383, refd to. [para. 340].

R. v. Clark (2004), 181 O.A.C. 276; 69 O.R.(3d) 321 (C.A.), refd to. [para. 345].

R. v. Baltovich (R.) (2004), 192 O.A.C. 366; 73 O.R.(3d) 481 (C.A.), refd to. [para. 356].

R. v. Nielsen and Stolar, [1988] 1 S.C.R. 480; 82 N.R. 280; 52 Man.R.(2d) 46; 40 C.C.C.(3d) 1, refd to. [para. 356].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 518(1)(b) [para. 159].

Authors and Works Noticed:

Canadian Judicial Council, Commentaries on Judicial Conduct (1991), p. 12 [para. 319].

Kaufman Report - see Ontario, Attorney General Report, The Commission on Proceedings Involving Guy Paul Morin.

Manitoba, Department of Justice, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Sophonow Report) (2001), generally [para. 65].

Ontario, Attorney General, The Commission on Proceedings Involving Guy Paul Morin (Kaufman Report) (1998), generally [paras. 65, 239].

Sophonow Report - see Manitoba, Department of Justice, The Inquiry Regarding Thomas Sophonow:  The  Investigation,  Prosecution and Consideration of Entitlement to Compensation.

Counsel:

David Finley, John McInnes, Christine Tier and Eliott Behar, for the respondent;

Richard Litkowski, Catherine Glaister and Delmar Doucette, for the appellant Mallory;

Robert Stewart, appearing in person;

Ian R. Smith, Louis P. Strezos and Joseph Di Luca, as Amicus Curiae.

This appeal was heard on November 27 to December 1, 2006, before, Sharpe, Simmons and Lang, JJ.A., of the Ontario Court of Appeal. The following decision was delivered by the court on January 26, 2007.