R. v. McCarroll, (2008) 241 O.A.C. 316 (CA)

• Jurisdiction: Ontario
• Judge: Epstein,Glithero,MacFarland
• Neutral Citation: 2008 ONCA 715
• Court: Court of Appeal (Ontario)
• Date: 17 October 2008
• Citation: (2008), 241 O.A.C. 316 (CA),2008 ONCA 715,238 CCC (3d) 404,61 CR (6th) 353,[2008] OJ No 4048 (QL),241 OAC 316,[2008] O.J. No 4048 (QL),(2008), 241 OAC 316 (CA),241 O.A.C. 316

R. v. McCarroll (M.G.) (2008), 241 O.A.C. 316 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. OC.062

Her Majesty the Queen (respondent) v. Michael Gordon McCarroll (appellant)

(C46528; 2008 ONCA 715)

Indexed As: R. v. McCarroll (M.G.)

Ontario Court of Appeal

MacFarland and Epstein, JJ.A., and Glithero, R.S.J.(ad hoc)

October 17, 2008.

Summary:

The accused appealed his conviction for second degree murder.

The Ontario Court of Appeal allowed the appeal, quashed the conviction and ordered a new trial.

Criminal Law - Topic 131

Rights of accused - Right to just conduct of trial - The accused appealed his conviction for second degree murder - The Ontario Court of Appeal held that the accused's counsel failed to object at various key points during the trial - The failure to object could inform the court's assessment of the adequacy of the trial judge's instruction, especially where the accused relied on a non-direction as a ground of appeal - However, the court was satisfied that the errors it had identified affected the accused's right to a fair trial and counsel's failure to object was no answer to the errors - See paragraphs 114 and 115.

Criminal Law - Topic 1299

Murder - Defences - Jury charge (incl. intent and drunkenness) - The accused was convicted of second degree murder - The victim was beaten with a baseball bat outside a bar - On appeal, the accused submitted that the trial judge should have put the issue of intoxication to the jury - The Ontario Court of Appeal agreed - Evidence of intoxication was relevant to whether there was a reasonable doubt on the question of intent or foreseeability - The question was whether the evidence of intoxication was sufficient to permit a reasonable inference that the accused might not in fact have foreseen that his acts in relation to striking the victim with the bat would cause his death - The evidence supported such an inference - There was evidence that the accused was "hammered" when he arrived at the bar and that he continued to consume large quantities of alcohol - Other evidence described the accused as dazed and unresponsive following the attack - In the event the jury concluded that the accused caused the victim's death, the question of whether the accused was guilty of manslaughter or second-degree murder was a live issue - See paragraphs 93 to 104.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - The accused appealed his conviction for second degree murder - A fight occurred between two groups outside a bar - The victim was beaten with a baseball bat - The bartender (Cabral) testified for the Crown - In the pre-charge conference the defence argued that Cabral should be subject to the trial judge's Vetrovec warning - She had a criminal record including crimes of dishonesty and, at trial, was on probation for fraud - She also admitted to having perjured herself during the trial - The trial judge did not include Cabral in his Vetrovec warning - He gave no reasons - The Ontario Court of Appeal held that the trial judge committed reversible error - Cabral's evidence was inherently suspect and important to the Crown's case - First, she was one of the only witnesses not closely associated with either group involved in the fight - Second, she was an important witness because she confirmed the extended confrontation before the murder and described the accused as leaving the scene with the murder weapon - See paragraphs 62 to 78.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - [See Evidence - Topic 4716 ].

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See Criminal Law - Topic 131 ].

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - [See first Criminal Law - Topic 4377 ].

Criminal Law - Topic 4953

Appeals - Indictable offences - New trials - Grounds - Admission of prejudicial evidence - The accused appealed his conviction for second degree murder - The victim was beaten with a baseball bat - The next day, a witness (Kidd) spoke to the police and denied having any relevant knowledge of the events - Two days later she provided a videotaped statement that she saw the accused take the bat from another witness (Verschaeve) and discard it after the attack - At the preliminary inquiry, Kidd testified that she did not know who took the bat from Verschaeve - However, she maintained her position that the accused was the one who discarded the bat after the fight - At trial, Kidd claimed to remember the beginning of the fight and calling for help but then experienced a series of black-outs - She denied any memory of the accused having taken the bat from Verschaeve or having thrown it away - Kidd was played portions of her video statement to refresh her memory, but without effect - The trial judge admitted the evidence - The Ontario Court of Appeal held that he erred, causing significant prejudice to the accused - The jury had before it untested evidence that was potentially powerful for the prosecution - Kidd's prior videotaped statement put the bat into the accused's hands - This was significant for two reasons - First, the central issue was who wielded the bat that delivered the fatal blows - Second, the contents of the statement were capable of confirming the evidence of Smith (Kidd's boyfriend) and Verschaeve thereby adding credibility to two otherwise suspect witnesses - The trial judge erred in permitting the jury to rely on Kidd's out of court statement for the truth of its contents - Standing alone, this improper admission was reversible error necessitating a new trial - See paragraphs 59 to 61.

Criminal Law - Topic 5420

Evidence and witnesses - Witnesses - Out of court statements (incl. videotaped statements) - [See Evidence 4688 and both Evidence - Topic 4752 ].

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - [See first Criminal Law - Topic 4377 ].

Criminal Law - Topic 5515

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - What constitutes corroboration - The accused appealed his conviction for second degree murder - A fight occurred between two groups outside a bar - The victim (Prebtani) was beaten with a baseball bat - The trial judge gave a Vetrovec warning in relation to the witnesses Smith, Kidd, Verschaeve and his son Drew - He told them that they needed to find some confirmatory evidence tending to persuade them that they were telling the truth, before they could rely on their evidence - He illustrated for the jurors the type of evidence that they might find to be corroborative: the injuries suffered by Prebtani could confirm the evidence of both Verschaeve and Smith as to how Prebtani met his death at the hands of the accused wielding the baseball bat; Smith's broken ankle could confirm the evidence of both he and Verschaeve that the accused was responsible for Prebtani's death; and finding the baseball bat in a garden could support the evidence of both another witness and Smith because they testified that the accused threw it away as they were proceeding down the road after the incident - The accused submitted that none of these examples qualified as potentially confirmatory evidence - They were simply background elements of the case - The Ontario Court of Appeal rejected the submission - See paragraphs 79 to 92.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - The accused appealed his conviction for second degree murder - The victim was beaten with a baseball bat - The next day, one witness (Kidd) spoke to the police and denied having any relevant knowledge of the events - Two days later she provided a videotaped statement that she saw the accused take the bat from another witness (Verschaeve) and discard it after the attack - At the preliminary inquiry, Kidd testified that she did not know who took the bat from Verschaeve - However, she maintained her position that the accused was the one who discarded the bat after the fight - At trial, Kidd claimed to remember the beginning of the fight and calling for help but then experienced a series of black-outs - She denied any memory of the accused having taken the bat from Verschaeve or having thrown it away - Kidd was played portions of her video statement to refresh her memory, but without effect - On appeal, the Crown argued that the videotaped statement was been admissible as necessary and reliable - The Ontario Court of Appeal disagreed - The reliability requirement was problematic given Kidd's intoxication, her admitted unreliability as an observer, her powerful motive to lie to protect her boyfriend (also a suspect) and her admission that she lied in her first statement to the police - In any event, the Crown made no attempt to embark upon the process necessary for admission on this basis - See paragraphs 55 to 58.

Evidence - Topic 4688

Witnesses - Examination - Testimonial recollection or refreshing witness's memory - Past recorded recollection - The accused appealed his conviction for second degree murder - The victim was beaten with a baseball bat - The next day, one witness (Kidd) spoke to the police and denied having any relevant knowledge of the events - Two days later she provided a videotaped statement that she saw the accused take the bat from another witness (Verschaeve) and discard it after the attack - At the preliminary inquiry, Kidd testified that she did not know who took the bat from Verschaeve - However, she maintained her position that the accused was the one who discarded the bat after the fight - At trial, Kidd claimed to remember the beginning of the fight and calling for help but then experienced a series of black-outs - She denied any memory of the accused having taken the bat from Verschaeve or having thrown it away - Kidd was played portions of her video statement to refresh her memory, but without effect - On appeal, the Crown argued that the videotaped statement was admissible for its truth under the traditional hearsay exception for a past recollection recorded - The Ontario Court of Appeal held that admitting the evidence under this exception was not open to the Crown because absence of memory was one of the essential conditions for admissibility for a past recollection recorded - The trial judge believed that Kidd was being untruthful about her memory lapses and expressed this view in his instructions to the jury - See paragraphs 51 to 54.

Evidence - Topic 4716

Witnesses - Examination - Cross-examination - On testimony to be contradicted - The accused appealed his conviction for second degree murder - The victim was beaten with a baseball bat - One witness's (Sivasubramaniam's) credibility was central to the accused's position - In his closing argument, the Crown impugned Sivasubramaniam's honesty when he suggested that Sivasubramaniam, a friend of the victim, lied as a result of his guilt over his involvement in the altercation - However, at no time while Sivasubramaniam was testifying did the Crown suggest to him that he had a motive to lie or that he was being untruthful - Thus, the defence did not ask Sivasubramaniam questions about his honesty - The rule in Browne v. Dunn required that where counsel sought to challenge the witness's credibility by calling contradictory evidence, the witness had to be given the opportunity to address such evidence during cross-examination - The Ontario Court of Appeal noted that here, the Crown did not seek to call evidence to contradict what Sivasubramaniam said - Rather, long after he left the courtroom, the Crown presented argument as to why his credibility was suspect - The effect, however, was the same - The only way of effectively correcting the unfairness the Crown created was for the trial judge to tell the jury that in assessing the weight to give to Sivasubramaniam's evidence, they could properly take into account the fact that he was not given the opportunity to respond to the Crown's accusations of dishonesty - The trial judge's silence on this issue amounted to a reversible error - See paragraphs 105 to 113.

Evidence - Topic 4726

Witnesses - Examination - Impeaching credibility - Duty to give witness opportunity to explain - [See Evidence - Topic 4716 ].

Evidence - Topic 4752

Witnesses - Examination - Prior inconsistent statements - Admissibility - Foundation required - Relying on R. v. C.C.F. (1997, SCC), the Crown argued that the application of the principled approach in cases involving prior videotaped statements where the witness was available for cross-examination had substantially modified the orthodoxy of the traditional cases - The Ontario Court of Appeal stated that "At issue in C.C.F. were the requirements for the admissibility of a videotaped statement under s. 715.1 of the Criminal Code ... a statutory exception to the hearsay rule that permits an out-of-court statement to be admitted at the trials of certain enumerated offences if the complainant is a child under the age of eighteen and if the video was made within a reasonable time following the alleged offences. The court held that the word 'adopts' in s. 715.1 should be given a meaning that advances the dual purposes of the section; to create a record of what is likely to be the witness' best recollection of the events and to reduce the harm to a child of further participation in court proceedings. ... The decision in C.C.F. does not affect the law as it applies to the adoption of out-of-court statements of adults." - See paragraphs 47 and 49.

Evidence - Topic 4752

Witnesses - Examination - Prior inconsistent statements - Admissibility - Foundation required - The accused appealed his conviction for second degree murder - The victim was beaten with a baseball bat - The next day, one witness (Kidd) spoke to the police and denied having any relevant knowledge of the events - Two days later she provided a videotaped statement that she saw the accused take the bat from another witness (Verschaeve) and discard it after the attack - At the preliminary inquiry, Kidd testified that she did not know who took the bat from Verschaeve - However, she maintained her position that the accused was the one who discarded the bat after the fight - At trial, Kidd claimed to remember the beginning of the fight and calling for help but then experienced a series of black-outs - She denied any memory of the accused having taken the bat from Verschaeve or having thrown it away - Kidd was played portions of her videotaped statement to refresh her memory, but without effect - The Crown did not follow any particular procedure or advance any particular basis to have Kidd's videotaped statement admitted into evidence for the truth of its contents - However, in closing argument, the Crown suggested that the jury should accept the contents of what Kidd said in her statement - The Ontario Court of Appeal held that the trial judge erred in instructing the jury that Kidd adopted the contents of her prior statement given that she had no present recollection of the events it described - There was no evidentiary basis for concluding that she adopted her statement - Second, even if there was an evidentiary basis, it was for the jury to decide whether or not Kidd adopted what she said in her interview with the police as part of her trial testimony and imprinted it with her trial oath - See paragraphs 30 to 42.

Evidence - Topic 4753

Witnesses - Examination - Prior inconsistent statements - Effect of lack of proper foundation - [See Criminal Law - Topic 4953 ].

Cases Noticed:

R. v. Deacon (1947), 89 C.C.C. 1 (S.C.C.), refd to. [para. 39].

R. v. McInroy and Rouse (1978), 23 N.R. 589; 42 C.C.C.(2d) 481 (S.C.C.), refd to. [para. 39].

R. v. Toten (W.P.) (1993), 63 O.A.C. 321; 83 C.C.C.(3d) 5 (C.A.), refd to. [para. 39].

R. v. T.T. and S.L. (1997), 103 O.A.C. 15; 117 C.C.C.(3d) 481 (C.A.), refd to. [para. 39].

R. v. Atikian and Atikian (1990), 42 O.A.C. 214; 62 C.C.C.(3d) 357 (C.A.), refd to. [para. 39].

R. v. C.C.F. (1997), 220 N.R. 362; 104 O.A.C. 321; 120 C.C.C.(3d) 225 (S.C.C.), dist. [para. 45].

R. v. Khelawon (R.) (2006), 355 N.R. 267; 220 O.A.C. 338; 215 C.C.C.(3d) 161 (S.C.C.), refd to. [para. 51].

R. v. Richardson (J.) et al. (2003), 174 O.A.C. 390 (C.A.), leave to appeal refused [2004] S.C.C.A. No. 330, appld. [para. 52].

R. v. K.G.B. (1993), 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257 (S.C.C.), refd to. [para. 55].

R. v. Vetrovec; R. v. Gaja (1982), 41 N.R. 606; 67 C.C.C.(2d) 1 (S.C.C.), refd to. [para. 62].

R. v. Brooks (F.A.) (2000), 250 N.R. 103; 129 O.A.C. 205; 141 C.C.C.(3d) 321 (S.C.C.), appld. [para. 66].

R. v. Kehler (R.A.) (2004), 317 N.R. 30; 346 A.R. 19; 320 W.A.C. 19; 181 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 83].

R. v. Wade (W.) (1995), 182 N.R. 387; 82 O.A.C. 182; 98 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 94].

R. v. Lemky (T.R.) (1996), 194 N.R. 1; 73 B.C.A.C. 1; 120 W.A.C. 1; 105 C.C.C.(3d) 137 (S.C.C.), refd to. [para. 98].

Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 107].

R. v. McNeill (S.) (2000), 131 O.A.C. 346; 144 C.C.C.(3d) 551 (C.A.), folld. [para. 110].

R. v. Khan (M.A.) (2001), 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 160 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 116].

Counsel:

Philip Campbell and Michael Dineen, for the appellant;

John S. McInnes, for the respondent.

This appeal was heard on April 29 and 30, 2008, by MacFarland and Epstein, JJ.A., and Glithero, R.S.J.(ad hoc), of the Ontario Court of Appeal. Epstein, J.A., delivered the following reasons for judgment for the court on October 17, 2008.