R. v. Spackman (K.),

• Jurisdiction: Ontario
• Judge: Laskin, Feldman and Watt, JJ.A.
• Neutral Citation: 2012 ONCA 905
• Citation: (2012), 300 O.A.C. 14 (CA),2012 ONCA 905,295 CCC (3d) 177,AZ-50926739,[2012] OJ No 6127 (QL),300 OAC 14,[2012] O.J. No 6127 (QL),(2012), 300 OAC 14 (CA),300 O.A.C. 14
• Date: 25 April 2012
• Court: Court of Appeal (Ontario)

R. v. Spackman (K.) (2012), 300 O.A.C. 14 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. DE.061

Her Majesty the Queen (appellant) v. Kelly Spackman (respondent)

(C50464; 2012 ONCA 905)

Indexed As: R. v. Spackman (K.)

Ontario Court of Appeal

Laskin, Feldman and Watt, JJ.A.

December 24, 2012.

Summary:

Spackman was charged with stabbing Christoff to death (second degree murder). Spackman contended that Chung was the killer and that the police investigation of Chung's involvement was inadequate. The trial judge, who had already decided that alternate suspect and inadequate investigation issues could be advanced before the jury, ruled that the Crown could not call Chung as a witness or introduce any evidence derived from Chung's disclaimer of responsibility. The jury found Spackman not guilty. The Crown appealed.

The Ontario Court of Appeal allowed the appeal as a result of the cumulative effect of legal errors in the exclusion of Chung's evidence and in the charge to the jury. The court set aside Spackman's acquittal, and ordered a new trial.

Civil Rights - Topic 3165.1

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Evidence - General - The accused was charged with second degree murder - He contended that another person, Chung, was the killer and that the police investigation of Chung's involvement was inadequate - The trial judge ruled that the Crown could not call Chung as a witness or introduce any evidence derived from Chung's disclaimer of responsibility, on the ground of trial fairness, or as a remedy for late disclosure - The Ontario Court of Appeal agreed with the Crown that the trial judge's ruling reflected legal error - The accused was required to show late disclosure caused actual prejudice to his ability to make full answer and defence - Further, evidentiary exclusion was an exceptional remedy, "reserved for those cases in which the usual remedy (an adjournment and disclosure order) would not be adequate or where exclusion was necessary to maintain the integrity of the justice system. Neither applied here. Further, the trial judge does not appear to have considered the bilateral nature of the fair trial interest" - Further, inadequacies in an investigation, on their own, did not constitute a denial of the right to make full answer and defence - See paragraphs 129 to 148.

Civil Rights - Topic 3165.1

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Evidence - General - The accused was charged with second degree murder - He contended that another person, Chung, was the killer and that the police investigation of Chung's involvement was inadequate - The trial judge ruled that the Crown could not call Chung as a witness or introduce any evidence derived from Chung's disclaimer of responsibility, on the ground of trial fairness, or as a remedy for late disclosure - The Ontario Court of Appeal held that the trial judge's evaluation of the probative value and prejudicial effect of the Chung evidence as a whole and his determination that the preponderance of prejudicial effect over probative value warranted exclusion of the evidence as a whole, constituted legal error - First, Chung's testimony and the derivative evidence was relevant and had probative value in relation to the alternate suspect defence advanced by the accused - Second, the introduction of the Chung evidence would neither have created nor enhanced moral or reasoning prejudice - Third, whether the police investigation of Chung was inadequate was not relevant in the cost benefit analysis - Fourth, the admissibility issue that required a decision related to the probative value/prejudicial effect balance of evidence responsive to the related claims that Chung was the killer and the police investigation was inadequate - The trial judge confused a rule of admissibility with a substantive "defence" - See paragraphs 149 to 158.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See first Civil Rights - Topic 3165.1 ].

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See first Civil Rights - Topic 3165.1 ].

Criminal Law - Topic 130

Rights of accused - Preparation of defence - Duties of Crown and police - [See first Civil Rights - Topic 3165.1 ].

Criminal Law - Topic 1265

Murder - General principles - Jury charge - General - [See Criminal Law - Topic 2759 ].

Criminal Law - Topic 2759

Attempts, conspiracies, accessories and parties - Parties to offences - Jury charge - Spackman was charged with second degree murder - He contended that another person, Chung, was the killer and that the police investigation of Chung's involvement was inadequate - This ground of appeal required consideration of the correctness of the jury instruction based on R. v. Schell and Paquette (1977) (Ont. C.A.), i.e., that if the jury could not determine whether Spackman or Chung stabbed the deceased 12 times, Spackman was to be found not guilty - The trial judge refused to instruct the jury that Spackman could be found guilty as a co-principal - The Ontario Court of Appeal held that the impugned instruction should not have been included in the jury charge - The availability of an inference of joint participation distinguished the case from Schell and Paquette - The jury should have been told that if they were satisfied that both Spackman and Chung participated in the killing, they could convict Spackman, without having to decide Chung's precise role, as long as they were satisfied that Spackmans' participation satisfied the essential elements of the offence charged - The misdirection left Spackmans' liability to be determined on a basis that excluded a mode of participation available on the evidence - See paragraphs 159 to 195.

Criminal Law - Topic 4382

Procedure - Charge or directions - Jury or judge alone - Misdirection - What constitutes - In this case, a ground of appeal related to several references in the charge to the jury to wrongful convictions and the potential for miscarriages of justice - The Ontario Court of Appeal gave effect to that ground of appeal - "As a general rule ... a reference in the charge to the jury to the 'history' in Canada of demonstrated wrongful convictions will not help jurors in their task ... Second, nothing should be said by a trial judge, whether explicitly or by necessary implication from the repetition of references to the subject, to overstate the extent of the problem of wrongful convictions ... Third, the trial judge should not have made reference to specific cases of documented wrongful convictions or have tried to draw parallels with them. ... Fourth, instructions like those under review here, risk inviting jurors to take into account irrelevant considerations and imaginary dangers, rather than focusing on their task of assessing the evidence in accordance with the governing legal principles in the case that is theirs to decide ... Finally, ... repeated references to miscarriages of justice and wrongful convictions is a form of intimidation that invites acquittal, not because of an absence of sufficient proof of guilt, but because a verdict of guilt might be proven wrong in the fullness of time" - See paragraphs 227 to 247.

Criminal Law - Topic 4955

Appeals - Indictable offences - New trials - Grounds - Cumulative effect of errors - The core issue at trial was the identity of the deceased's killer - The accused said it was Chung - The Crown said it was the accused and that Chung's participation didn't matter - The evidence was circumstantial - The trial judge ruled that the Crown could not call Chung as a witness or introduce any evidence derived from Chung's disclaimer of responsibility - The jury acquitted the accused - The Ontario Court of Appeal ordered a new trial as a result of the cumulative effect of legal errors - First, the ruling that excluded Chung's testimony and any evidence derived from it left jurors with a distorted picture about Chung's alleged participation in the killing - Second, the jury instruction confined the jury's consideration of the accused's liability too narrowly - The effect of the instruction was that, if the jury had a reasonable doubt about Chung's participation, the accused was to be acquitted - A proper instruction on co-principals would have focussed on the accused's participation and required a finding of guilt upon adequate proof of it irrespective of Chung's involvement - Third, the inappropriate and repeated references to the prospect of wrongful conviction and a miscarriage of justice amounted to a form of jury intimidation inviting acquittal, not because of inadequacies in the proof of guilt, but because a conviction might be determined to have been a miscarriage of justice - See paragraphs 248 to 264.

Criminal Law - Topic 4975

Appeals - Indictable offences - Powers of Court of Appeal - Appeal from an acquittal - [See Criminal Law - Topic 4955 ].

Criminal Law - Topic 5208

Evidence and witnesses - Admissibility and relevancy - Facts relevant to the theory of the defence - [See second Civil Rights - Topic 3165.1 ].

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - [See second Civil Rights - Topic 3165.1 ].

Criminal Law - Topic 5214.8

Evidence and witnesses - Admissibility and relevancy - That crime committed by another (incl. evidence to rebut) - [See both Civil Rights - Topic 3165.1 ].

Criminal Law - Topic 5274.5

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Application for - Evidence in support - The accused was charged with second degree murder - A drug dealer was stabbed to death, his body dumped in the snow - The accused was acquitted - On appeal, the Crown challenged a ruling made by another judge (the reviewing judge) who decided an application in connection with an authorization to intercept private communications - As a result of the decision, several intercepted private communications that the Crown proposed to introduce at trial were ruled inadmissible - The Ontario Court of Appeal held that the reviewing judge erred in concluding that there was no reliable evidence that might reasonably be believed on the basis of which the authorizing judge could have granted the authorization - First, it was not the role of the reviewing judge to "micromanage" homicide investigations - Second, the piecemeal approach was incompatible with the reviewing judge's obligation to review the affidavit material as a whole, and to acknowledge the authority of the authorizing judge to draw reasonable inferences - Third, the reviewing judge failed to articulate the basis upon which he rested his conclusions - Fourth, the reviewing judge lost sight of the reality of the specific criminal inquiry in which investigators were engaged - Finally, the relevant standard was whether, based on the record before the authorizing judge, as amplified on the review, the authorization could have been granted, not whether it would have been granted - See paragraphs 196 to 226.

Evidence - Topic 1025

Relevant facts, relevance and materiality - Admissibility - Unfairness - [See first Civil Rights - Topic 3165.1 ].

Evidence - Topic 1026

Relevant facts, relevance and materiality - Admissibility - Prejudicial evidence - [See second Civil Rights - Topic 3165.1 ].

Cases Noticed:

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 95].

R. v. J.M.H., [2011] 3 S.C.R. 197; 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 98].

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. 99].

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 99].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 100].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 100].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, refd to. [para. 100].

R. v. Bjelland (J.C.), [2009] 2 S.C.R. 651; 391 N.R. 202; 460 A.R. 230; 462 W.A.C. 230; 2009 SCC 38, refd to. [para. 102].

R. v. Felderhof (J.B.) (2003), 180 O.A.C. 288; 180 C.C.C.(3d) 498 (C.A.), refd to. [para. 104].

R. v. Horan (K.) (2008), 240 O.A.C. 313; 237 C.C.C.(3d) 514; 2008 ONCA 589, refd to. [para. 104].

R. v. McNeil (L.), [2009] 1 S.C.R. 66; 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, refd to. [para. 105].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 105].

R. v. S.J.L.-G. et al., [2009] 1 S.C.R. 426; 386 N.R. 1; 2009 SCC 14, refd to. [para. 108].

R. v. Khela (S.S.) and Dhillon (K.S.), [1995] 4 S.C.R. 201; 188 N.R. 355, refd to. [para. 108].

R. v. Darwish (W.H.) (2010), 258 O.A.C. 272; 103 O.R.(3d) 561; 2010 ONCA 124, leave to appeal denied (2010), 410 N.R. 399; 279 O.A.C. 399 (S.C.C.), refd to. [para. 108].

R. v. Barnes (E.R.), [2009] O.A.C. Uned. 282; 2009 ONCA 432, refd to. [para. 108].

R. v. Schmidt (B.S.) (2001), 146 B.C.A.C. 111; 239 W.A.C. 111; 151 C.C.C.(3d) 74; 2001 BCCA 3, refd to. [para. 108].

R. v. Ahluwalia (B.) (2000), 138 O.A.C. 154; 149 C.C.C.(3d) 193 (C.A.), refd to. [para. 109].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 111].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 117].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 118].

R. v. McMillan (1975), 7 O.R.(2d) 750 (C.A.), affd. [1977] 2 S.C.R. 824; 15 N.R. 20, refd to. [para. 120].

R. v. Grandinetti (C.H.), [2005] 1 S.C.R. 27; 329 N.R. 28; 363 A.R. 1; 343 W.A.C. 1; 2005 SCC 5, refd to. [para. 120].

R. v. Fontaine (J.), [2004] 1 S.C.R. 702; 318 N.R. 371; 2004 SCC 27, refd to. [para. 121].

R. v. Mullins-Johnson (W.) (1996), 96 O.A.C. 212; 112 C.C.C.(3d) 117 (C.A.), affd. [1998] 1 S.C.R. 977; 226 N.R. 365; 110 O.A.C. 1, refd to. [para. 122].

R. v. Parsons (G.) (1993), 65 O.A.C. 61; 84 C.C.C.(3d) 226 (C.A.), refd to. [para. 122].

R. v. Dhillon (S.) (2002), 161 O.A.C. 231; 166 C.C.C.(3d) 262 (C.A.), refd to. [para. 123].

R. v. Mallory (R.) et al. (2007), 220 O.A.C. 239; 217 C.C.C.(3d) 266; 2007 ONCA 46, refd to. [para. 123].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 123].

R. v. Van (D.), [2009] 1 S.C.R. 716; 388 N.R. 200; 251 O.A.C. 295; 2009 SCC 22, refd to. [para. 123].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 124].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [para. 124].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 125].

R. v. L.B.; R. v. M.A.G. (1997), 102 O.A.C. 104; 35 O.R.(3d) 35 (C.A.), refd to. [para. 135].

R. v. Schell and Paquette (No. 1) (1977), 33 C.C.C.(2d) 422 (Ont. C.A.), dist. [paras. 174, 186 et seq.].

R. v. Pickton (R.W.), [2010] 2 S.C.R. 198; 404 N.R. 198; 290 B.C.A.C. 264; 491 W.A.C. 264; 2010 SCC 32, refd to. [para. 181].

R. v. Ball (A.G.) et al. (2011), 298 B.C.A.C. 166; 505 W.A.C. 166; 2011 BCCA 11, refd to. [para. 183].

R. v. Thatcher, [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113, refd to. [para. 184].

R. v. Sparrow (1979), 51 C.C.C.(2d) 443 (Ont. C.A.), refd to. [para. 185].

R. v. Isaac, [1984] 1 S.C.R. 74; 51 N.R. 308, refd to. [para. 185].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 196].

R. v. Araujo (A.), [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 217].

R. v. Pires; R. v. Lising - see R. v. Lising (R.) et al.

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 219].

R. v. Grant (O.) (1999), 117 O.A.C. 345; 132 C.C.C.(3d) 531 (C.A.), refd to. [para. 220].

R. v. Agensys International Inc. et al. (2004), 188 O.A.C. 26; 71 O.R.(3d) 515 (C.A.), refd to. [para. 220].

R. v. Ebanks (N.) (2009), 256 O.A.C. 222; 97 O.R.(3d) 721; 2009 ONCA 851, refd to. [para. 224].

R. v. Ruddick (1980), 57 C.C.C.(2d) 421 (Ont. C.A.), refd to. [para. 235].

R. v. Yanover and Gerol (No. 1) (1985), 9 O.A.C. 93; 20 C.C.C.(3d) 300 (C.A.), refd to. [para. 235].

R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, refd to. [para. 250].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 21(1)(a) [para. 181]; sect. 186(1)(b) [para. 217]; sect. 676(1)(a) [para. 95].

Counsel:

Alexander Alvaro, for the appellant;

Joseph Wilkinson and Anida Chiodo, for the respondent.

This appeal was heard on April 25, 2012, before Laskin, Feldman and Watt, JJ.A., of the Ontario Court of Appeal. In reasons written by Watt, J.A., the Court of Appeal released the following judgment on December 24, 2012.