R. v. Saleh (F.), 2013 ONCA 742

• Judge: Watt, Tulloch and Lauwers, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 16, 2013
• Jurisdiction: Ontario
• Citations: 2013 ONCA 742;(2013), 314 O.A.C. 60 (CA)

R. v. Saleh (F.) (2013), 314 O.A.C. 60 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. DE.010

Her Majesty the Queen (respondent) v. Fadi Saleh (appellant)

(C52879; 2013 ONCA 742)

Indexed As: R. v. Saleh (F.)

Ontario Court of Appeal

Watt, Tulloch and Lauwers, JJ.A.

December 10, 2013.

Summary:

The accused appealed his jury conviction for first degree murder.

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

Civil Rights - Topic 3138.1

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to non-jury trial - The Ontario Court of Appeal stated that "The presumptive mode of trial in cases of first degree murder is trial by jury: Criminal Code, s. 471. Section 473(1) of the Criminal Code expressly permits an allegation of murder, an offence listed in s. 469(a)(vii) of the Criminal Code, to be tried without a jury, provided both the accused and the Attorney General consent to this alternative mode of trial. ... The authorities recognize a closely circumscribed jurisdiction in a trial judge, on application by an accused, to direct that the trial of a case of murder be held before a judge sitting without a jury ... A judge should only override the refusal of the Crown to consent to a judge-alone trial under s. 473(1) in the clearest of cases. The prevailing authorities do not articulate a precise standard to be applied on an application to override the refusal of prosecutorial consent under s. 473(1). What does emerge, however, is that the standard is a demanding one, at a minimum the standard required to obtain a change of venue under s. 599(1)(a) of the Criminal Code ... 14. In essence, it falls to the accused to demonstrate, on a balance of probabilities, that the time-honoured statutory and common law procedures designed to preserve and protect the right of every accused to a fair trial by an impartial tribunal are insufficient in the circumstances of the case to ensure a fair trial ... The industry of counsel did not unearth any authority that permits a trial judge to direct a judge-alone trial to remedy any potential unfairness caused by the introduction of preliminary inquiry evidence." - See paragraphs 82 to 85.

Civil Rights - Topic 3138.1

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to non-jury trial - Yegin, Esrabian and the accused were arrested for Hassan's murder - Yegin offered to provide a statement, testify for the Crown and lead police to the location of Hassan's body if he were released from custody and the charge against him withdrawn - The investigators accepted the offer provided Yegin told the truth - Yegin gave a statement implicating the accused and took the police to Hassan's body - The charge against him was withdrawn - Yegin's story and his revised account were inconsistent with the physical findings - He was re-arrested and charged with murder - At the accused's preliminary inquiry, Yegin gave a different version of events that implicated both Esrabian and the accused - Esrabian gave four statements to police, testified at his own bail hearing and gave evidence at the accused's preliminary inquiry, at Yegin's preliminary inquiry and trial, and at his own trial - At first, he denied any involvement - In his subsequent versions of events, he maintained that Yegin shot Hassan - Both Yegin and Esrabian refused to testify as Crown witnesses at the accused's trial - The Crown sought to introduce the evidence each gave at the accused's preliminary inquiry as evidence at trial (Criminal Code, s. 715) or, alternatively, to have the trial proceed without a jury despite the absence of the Attorney General's consent (s. 473(1)) - The trial judge refused to admit Esrabian's preliminary inquiry evidence, admitted Yegin's evidence and declined the s. 473(1) request - The Ontario Court of Appeal allowed the accused's appeal - Yegin's and Esrabian's preliminary inquiry evidence was prima facie admissible - The trial judge was required to decide what the effect of the admission of the evidence would be on the accused's trial - To do so, he had to balance the accused's fair treatment with society's interest in the admission of probative evidence so as to get at the truth of the allegations contained in the indictment - He erred by focussing on protecting the accused from unfairness - He also erred in not considering the manifest unreliability of Yegin and whether the admission of his evidence would operate unfairly to the accused; the impact on trial fairness of the accused's inability to confront Yegin in the jury's presence with information obtained after Yegin's preliminary inquiry testimony; and the effect of excluding Esrabian's evidence on the fairness of the accused's trial - The court refused to interfere with the judge's s. 473(1) decision - See paragraphs 86 to 95.

Civil Rights - Topic 8408

Canadian Charter of Rights and Freedoms - Criminal proceedings - Jury trial - [See both Civil Rights - Topic 3138.1 ].

Criminal Law - Topic 3587

Preliminary inquiry - Evidence - Admission at trial of evidence taken at preliminary inquiry - [See second Civil Rights - Topic 3138.1 ].

Criminal Law - Topic 3587

Preliminary inquiry - Evidence - Admission at trial of evidence taken at preliminary inquiry - The Ontario Court of Appeal reviewed the law respecting the authority under s. 715 of the Criminal Code and the common law (i.e., the principled exception to the hearsay rule) to admit evidence taken in one proceedings (e.g., the preliminary inquiry) in another proceeding (e.g., the trial) - The court also reviewed the exclusionary exception where an accused was not provided with a full opportunity to cross-examine the witness - See paragraphs 66 to 81.

Criminal Law - Topic 4341.2

Procedure - Jury evidence - Leaving copies of transcripts, statements and exhibits with jury - An accused appealed his conviction for the first degree murder of Hassan, asserting that the trial judge failed to review substantial parts of the evidence adduced at trial and failed to relate that evidence to the issues that the jury had to decide - The Ontario Court of Appeal agreed - In his final instructions, the judge posed four questions for the jury to consider - To answer each question, which reflected an essential element of the offence charged, the jury required and received instructions about the legal principles that governed their decision - However, the judge failed to meet his further obligation to review the evidence relevant to the issue framed by each question and to relate that evidence to the issue and the positions taken by the parties on each question and issue - The audiotapes and transcripts of one witness's preliminary inquiry evidence and 87 typewritten pages of the trial judge's notes on the evidence were available for review in the jury room during deliberations - But the jury was entitled to more - It could not simply be handed the evidence in bulk and left to decide, untutored, which parts of it were relevant to the various questions posed for their response - See paragraphs 146 to 154.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Directions regarding evidence generally - The accused was charged with the first degree murder of Hassan - A jury trial ensued - During their deliberations, the jury asked whether a person had to be present to be guilty of first or second degree murder - The trial judge heard submissions from counsel about the proper response - Late in the afternoon, he told the jurors that he would answer the question the following morning - The jury retired - The following morning, without re-reading the question, the judge answered by reading an addendum to his charge and providing a written copy of it to the jury - For the first time, the judge reviewed some of the evidence, including evidence of the accused's alleged motive, that tended to show that he was present when and where Hassan was killed - The Ontario Court of Appeal held that the judge erred by not distributing the proposed response to counsel and receiving their submissions on its adequacy before reading it to the jurors - Of greater significance were the substantive flaws - The judge erroneously advised the jury that the defence's position had not been that the accused was not present when Hassan was killed - The judge later made it clear that the accused's presence was an issue that the jury had to decide - However, the response treated presence as proof of murder as a matter of law - That instruction converted an issue of fact into a legal instruction, thus rendering essential findings of fact on that issue unnecessary - The judge's response was also over-inclusive - The question did not invite a review of the evidence relevant to the issue of the accused's presence - However, once the judge decided to engage in such a review, the references had to be fair and balanced - They were not and thus reflected error - See paragraphs 176 to 183.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The Ontario Court of Appeal reviewed the law governing Vetrovec instructions about potentially unsavoury witnesses - See paragraphs 107 to 110.

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 his conviction by jury for first degree murder, asserting that the trial judge erred in his Vetrovec instruction by failing to indicate the principal reasons for enhanced scrutiny respecting Yegin and Ebrekdjian - The Ontario Court of Appeal rejected the assertion for three reasons: (1) It was debatable whether the authorities went so far as to say that the failure to point out every reason why jurors should approach a witness's evidence with great care and caution amounted to legal error - The issue was really whether what the judge said was sufficient, in the context of the charge as a whole, to equip the jurors to understand the reasons why they should be very cautious about grounding a conviction on that evidence - Here the instructions fulfilled their purpose - (2) The omissions were also matters that were at once self-evident, and treated in depth in the closing addresses on both sides and the judge's repetition of the position of the defence in his jury instructions - (3) the accused's trial counsel did not object to the charge on this ground despite ample opportunity to do so both before and after the charge was given - See paragraphs 111 to 115.

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 his conviction by jury for the first degree murder of Hassan, asserting that the trial judge erred in his Vetrovec instruction in the items he listed as potential confirmatory evidence in connection with Yegin's evidence as they lacked the essential quality of materiality - The Ontario Court of Appeal rejected the assertion, stating that "To be confirmatory of the testimony of a Vetrovec witness, evidence need not implicate the accused in the commission of the offence charged ... Yegin's evidence was that he was present and witnessed the killing of Hassan. Evidence that confirmed his attendance there contemporaneous with the killing, his ability to locate the burial site, unhesitatingly and at night, and the finding of the deceased's car as he described was some evidence that could give comfort to the jury that his assertion that the appellant was the killer could be trusted. Nothing more was required of the evidence." - See paragraphs 116 and 117.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of defence - [See Criminal Law - Topic 4341.2 ].

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of defence - The Ontario Court of Appeal reviewed a trial judge's obligation to review the substantial parts of the evidence with the jury and to give the jury the defence's position, so that the jury could appreciate the value and effect of the evidence, and how the law was to be applied to the facts as the jury found them to be - See paragraphs 140 to 145.

Criminal Law - Topic 4357.1

Procedure - Charge or directions - Jury or judge alone - Directions re theory of Crown - [See Criminal Law - Topic 4341.2 ].

Criminal Law - Topic 4391.2

Procedure - Charge or directions - Jury or judge alone - Directions following questions by jury - [See Criminal Law - Topic 4352 ].

Criminal Law - Topic 4391.2

Procedure - Charge or directions - Jury or judge alone - Directions following questions by jury - The Ontario Court of Appeal reviewed the principles that governed the manner in which trial judges were to respond to jury questions - See paragraphs 172 to 175.

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See second Criminal Law - Topic 4354 ].

Cases Noticed:

R. v. Potvin, [1989] 1 S.C.R. 525; 93 N.R. 42; 21 Q.A.C. 258, refd to. [para. 59].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81, refd to. [para. 66].

R. v. Ingraham (1991), 46 O.A.C. 216; 66 C.C.C.(3d) 27 (C.A.), refd to. [para. 71].

R. v. Davidson (1988), 28 O.A.C. 86; 42 C.C.C.(3d) 289 (C.A.), refd to. [para. 71].

R. v. Michaud (F.) (2000), 224 N.B.R.(2d) 371; 574 A.P.R. 371; 144 C.C.C.(3d) 62 (C.A.), refd to. [para. 72].

R. v. Lewis (I.A.) (2009), 256 O.A.C. 268; 249 C.C.C.(3d) 265; 2009 ONCA 874, refd to. [para. 72].

R. v. Li (A.) et al. (2012), 292 O.A.C. 60; 110 O.R.(3d) 321; 2012 ONCA 291, refd to. [para. 76].

R. v. Tourangeau (J.) (1994), 128 Sask.R. 101; 85 W.A.C. 101 (C.A.), refd to. [para. 77].

R. v. Castanheira, [1996] O.J. No. 3006 (C.A.), refd to. [para. 77].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 80].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 80].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 81].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 81].

R. v. McGregor (C.) (1999), 118 O.A.C. 385; 43 O.R.(3d) 455 (C.A.), refd to. [para. 83].

R. v. L.E. et al. (1994), 75 O.A.C. 244; 94 C.C.C.(3d) 228 (C.A.), refd to. [para. 83].

R. v. Khan (M.A.) (2007), 230 O.A.C. 174; 2007 ONCA 779, refd to. [para. 83].

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; 2009 SCC 4, refd to. [para. 107].

R. v. Hurley (G.D.), [2010] 1 S.C.R. 637; 401 N.R. 232; 350 Sask.R. 1; 487 W.A.C. 1; 2010 SCC 18, refd to. [para. 107].

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; 2009 SCC 5, refd to. [para. 107].

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

R. v. Linklater (R.) (2009), 246 O.A.C. 303; 2009 ONCA 172, refd to. [para. 108].

R. v. Kehler (R.A.), [2004] 1 S.C.R 328; 317 N.R. 30; 346 A.R. 19; 320 W.A.C. 19; 2004 SCC 11, refd to. [para. 110].

R. v. Azoulay, [1952] 2 S.C.R. 495, refd to. [para. 140].

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 132 C.C.C.(3d) 545 (C.A.), refd to. [para. 141].

R. v. Cudjoe (R.) (2009), 251 O.A.C. 163; 68 C.R.(6th) 86; 2009 ONCA 543, refd to. [para. 141].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 142].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 142].

R. v. Royz (E.), [2009] 1 S.C.R. 423; 388 N.R. 1; 251 O.A.C. 397; 2009 SCC 13, refd to. [para. 142].

R. v. MacKay (K.D.), [2005] 3 S.C.R. 607; 343 N.R. 398; 275 Sask.R. 40; 365 W.A.C. 40; 2005 SCC 75, refd to. [para. 145].

R. v. Charles (T.) (2011), 280 O.A.C. 21; 270 C.C.C.(3d) 308; 2011 ONCA 228, refd to. [para. 145].

R. v. Cooper, [1993] 1 S.C.R. 146; 146 N.R. 367; 103 Nfld. & P.E.I.R. 209; 326 A.P.R. 209, refd to. [para. 152].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [para. 173].

R. v. Desveaux (1986), 13 O.A.C. 1; 26 C.C.C.(3d) 88 (C.A.), refd to. [para. 173].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 173].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 715(1) [para. 68].

Counsel:

Marie Henein and Christine Mainville, for the appellant;

Christine Bartlett-Hughes, for the respondent.

This appeal was heard on May 16, 2013, by Watt, Tulloch and Lauwers, JJ.A., of the Ontario Court of Appeal. Watt, J.A., released the following judgment for the court on December 10, 2013.