R. v. Suzack (C.V.) et al., (2000) 128 O.A.C. 140 (CA)

• Judge: Morden, Doherty and Abella, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 19, 2000
• Jurisdiction: Ontario
• Citations: (2000), 128 O.A.C. 140 (CA);2000 CanLII 5630 (NS CA);2000 CanLII 5630 (ON CA);141 CCC (3d) 449;30 CR (5th) 346;[2000] CarswellOnt 95;[2000] OJ No 100 (QL);128 OAC 140;45 WCB (2d) 157;71 CRR (2d) 1

R. v. Suzack (C.V.) (2000), 128 O.A.C. 140 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. JA.044

Her Majesty the Queen (respondent) v. Clinton Victor Suzack and Peter Pennett (appellants)

(C22404; C22904)

Indexed As: R. v. Suzack (C.V.) et al.

Ontario Court of Appeal

Morden, Doherty and Abella, JJ.A.

January 19, 2000.

Summary:

Suzack and Pennett were convicted by a jury of the first degree murder of a police officer. They appealed on several common and separate grounds, including the issues of severance (5 O.T.C. 12) and the admissibility of certain statements made by one of the accused (5 O.T.C. 26).

The Ontario Court of Appeal dismissed the appeals.

Civil Rights - Topic 3135

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to independent and impartial tribunal - [See Criminal Law - Topic 4320 ].

Civil Rights - Topic 3146

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Jury selection (Charter, s. 7 or 11(d)) - [See Criminal Law - Topic 4320 ].

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to just and fair trial - [See Criminal Law - Topic 4320 and second Criminal Law - Topic 4616 ].

Criminal Law - Topic 131

General principles - Rights of accused - Right to just conduct of trial - [See Criminal Law - Topic 4320 and second Criminal Law - Topic 4616 ].

Criminal Law - Topic 4312

Procedure - Jury - General - Impartiality - [See Criminal Law - Topic 4320 ].

Criminal Law - Topic 4320

Procedure - Jury - General - Peremptory challenges - Suzack and Pennett were charged with murder - They advanced antagonistic ("cut-throat") defences - Suzack's name appeared first on the indictment - Counsel could not agree on the order of peremptory challenges - Therefore, s. 635(2) of the Criminal Code required that he challenge prospective jurors before Pennett - Suzack argued that s. 635(2) gave Pennett a tactical advantage - He wasted peremptory challenges on jurors that Pennett would have challenged had he gone first - Suzack could run out of challenges before the jury was selected - This created a reasonable perception of unfairness violating ss. 11(d) and 7 of the Charter (right to trial by an impartial jury) - The Ontario Court of Appeal rejected the argument - At most, s. 635(2) potentially put some accused who challenged first at some tactical disadvantage in some cases - In the context of the entire process, the potential disadvantage was not significant -See paragraphs 47 to 71.

Criminal Law - Topic 4354

Procedure - Jury charge - Directions regarding evidence of co-accused - Suzack and Pennett were jointly charged with murder - They advanced "cut-throat" defences - Pennett elicited evidence of Suzack's bad character and propensity for violence - Suzack appealed his conviction arguing, inter alia, that the trial judge failed to properly instruct the jury as the use it could and could not make of the propensity evidence - The Crown argued that once the propensity evidence was properly admitted at Pennett's behest, the jury was entitled to use that evidence in determining Suzack's guilt (i.e., to bolster the Crown's case) - Therefore, no limiting instruction was necessary - The Ontario Court of Appeal rejected the Crown's argument - The court reviewed the trial judge's instruction and held that the instructions adequately protected Suzack's right to a fair trial - See paragraphs 109 to 135.

Criminal Law - Topic 4354

Procedure - Jury charge - Directions regarding evidence of co-accused - Suzack and Pennett were jointly charged with murder - Pennett appealed his conviction arguing, inter alia, that the trial judge should have told the jury that the evidence of Suzack's propensity for violence could be regarded "as circumstantial evidence identifying Suzack as the principal in the homicide" - The Ontario Court of Appeal rejected the argument - Where the target of the propensity evidence was not a co-accused, it was entirely proper to refer to the propensity evidence as circumstantial evidence that the third party and not the accused committed the crime - Where, however, the target was an accused on trial before the same jury, a more refined instruction was needed to balance the accuseds' competing interests - See paragraph 165 to 170.

Criminal Law - Topic 4354

Procedure - Jury charge - Directions regarding evidence of witnesses - Suzack and Pennett were jointly charged with murder -They advanced "cut-throat" defences - Two of Pennett's witnesses were his friends and had extensive criminal records involving dishonesty - They gave evidence potentially damaging to Suzack - Suzack's position was that their evidence was unworthy of belief - The trial judge instructed the jury, inter alia, that they should scrutinize the evidence of a witness who had an extensive record of dishonesty - Pennett appealed his conviction arguing, inter alia, that this instruction amounted to a Vetrovec warning which was not permitted respecting defence witnesses - The Ontario Court of Appeal rejected the argument - The impugned instruction was not a Vetrovec warning but rather a caution that these witnesses' credibility had to be carefully measured - The trial judge had to balance Suzack's and Pennett's conflicting interests - See paragraphs 184 to 189.

Criminal Law - Topic 4360

Procedure - Jury charge - Directions regarding inferences from silence - Suzack and Pennett were jointly charged with murder - They advanced "cut-throat" defences - Pennett's counsel cross-examined Suzack on his failure to reveal his version of events prior to testifying - The trial judge did not tell the jury that Suzack's pretrial silence could not be evidence of guilt nor that it was relevant to his credibility - Suzack appealed his conviction arguing, inter alia, that the trial judge failed to properly instruct the jury concerning his pretrial silence - The Ontario Court of Appeal rejected the argument - Suzack was not prejudiced - See paragraphs 136 to 141.

Criminal Law - Topic 4362

Procedure - Jury charge - Directions regarding separation of evidence against several accused in a joint trial - [See first and second Criminal Law - Topic 4354 ].

Criminal Law - Topic 4375.5

Procedure - Jury charge - Directions re prior misconduct or convictions - [See first and second Criminal Law - Topic 4354 ].

Criminal Law - Topic 4377

Procedure - Jury charge - Directions regarding credibility of witnesses - [See third Criminal Law - Topic 4354 ].

Criminal Law - Topic 4377.1

Procedure - Jury charge - Directions regarding reliability of witnesses' testimony -[See third Criminal Law - Topic 4354 ].

Criminal Law - Topic 4379

Procedure - Jury charge - Directions re evidence of character or credibility of accused - [See first and second Criminal Law - Topic 4354 ].

Criminal Law - Topic 4482

Procedure - Trials - Joint or separate trials of two or more persons - Suzack and Pennett were jointly charged with murder -They advanced "cut-throat" defences - Pennett elicited evidence of Suzack's bad character and propensity for violence - Suzack appealed his conviction arguing, inter alia, that the trial judge erred in refusing his motions for severance - The Ontario Court of Appeal rejected the argument - There was a presumption that persons accused of the joint commission of a crime should be tried together - The propensity evidence posed a threat to Suzack's right to a fair trial - The trial judge had to reconcile the co-accused's competing rights and provide a fair trial for both - He had to permit the use of the propensity evidence as part of Pennett's defence while preventing it's use as part of the Crown's case against Suzack - He correctly balanced the competing interests - His refusal to order severance did not reflect an error in principle or result in a miscarriage of justice - See paragraphs 72 to 108.

Criminal Law - Topic 4482

Procedure - Trials - Joint or separate trials of two or more persons - The Ontario Court of Appeal stated that "... persons accused of the joint commission of a crime should be tried together. That presumption applies with particular force where the co-accused are each alleging that the other is the guilty party. ... Separate trials where co-accused are blaming each other for the crime raise not only the danger of inconsistent verdicts, but also a real concern that the truth will not be discovered at either trial. ... If the accused are tried separately, it is highly unlikely that either jury will hear the complete story." - See paragraphs 87 and 88.

Criminal Law - Topic 4482

Procedure - Trials - Joint or separate trials of two or more persons - Suzack and Pennett were jointly charged with murder -They advanced "cut-throat" defences - Pennett elicited evidence of Suzack's bad character and propensity for violence - Suzack appealed his conviction arguing, inter alia, that the trial judge erred in refusing his motions for severance - He argued, inter alia, that the trial judge improperly used the timing of the severance motion as a factor militating against severance - The Ontario Court of Appeal rejected the argument - The practical consequences of ordering severance several weeks into the complicated trial, including the effective use of limited judicial resources, some consideration of those who had to undergo the ordeal of testifying, and the impossibility or difficulty of continuing with either accused's trial, were relevant considerations - See paragraphs 104 to 107.

Criminal Law - Topic 4616

Procedure - Trials - Venue - Change of - Grounds - Suzack and Pennett were charged with murdering a police officer - Media coverage of the heinous nature of the offence and the accuseds' prior criminal activities was extensive - Coverage suggested that the system had failed the officer because Suzack was a parolee - A petition was circulated for the return of the death penalty - The trial judge refused the accused's application for a change of venue - He stressed the numerous safeguards available to protect their right to a fair trial - He observed that the most prejudicial coverage had occurred over a year before the scheduled trial - He identified the real source of potential prejudice as the evidence to be adduced at trial itself rather than the pretrial publicity - The accused were convicted - They appealed arguing, inter alia, that the trial judge erred in not granting a change of venue - The Ontario Court of Appeal held that the trial judge did not err in refusing to direct a change of venue - See paragraphs 24 to 39.

Criminal Law - Topic 4616

Procedure - Trials - Venue - Change of - Grounds - Accused argued that the Charter right to a fair trial (s. 11(d)) required that the Crown demonstrate that an accused's right to a fair trial could be preserved without a change of venue - They argued that by placing the onus on an accused to justify a change of venue, s. 599(1) of the Criminal Code did not minimally impair an accused's right to a fair trial - The Ontario Court of Appeal rejected the argument - Section 599(1) was one of the many mechanisms designed to protect an accused's right to a fair trial - Placing the onus on an applicant accused for a change of venue was merely the application of the traditional and well-established rules of the adversarial process - The Charter itself placed the onus on a party alleging a breach to establish the breach - There was no infringement of the accuseds' right to a fair trial - See paragraphs 40 to 45.

Criminal Law - Topic 5343

Evidence and witnesses - Confessions and voluntary statements - Exculpatory statements by accused - Suzack and Pennett were charged with murder - The trial judge admitted Crown evidence that Pennett, while being pursued by the police, said "shoot me, shoot me" - Pennett argued that he should be entitled to elicit during the Crown's case exculpatory statements made by him shortly after his arrest ("I didn't shoot him" and "the guy I was with shot somebody") because they were closely connected to the pre-arrest statement - The trial judge held that the statements were subject to the general rule prohibiting an accused from introducing self-serving exculpatory statements through cross-examination of other witnesses - The Ontario Court of Appeal agreed - The post-arrest statements were not part of the same narrative as the pre-arrest utterances - They were blatantly self-serving and had no probative value unless accepted for the truth of their contents - See paragraphs 178 to 183.

Criminal Law - Topic 5450

Evidence and witnesses - Testimony respecting the accused - Character of accused - Jury charge - [See first and second Criminal Law - Topic 4354 ].

Cases Noticed:

Baker v. Canada (Minister of Citizenship and Immigration) (1999), 243 N.R. 22; 174 D.L.R.(4th) 193 (S.C.C.), refd to. [para. 32].

R. v. Frederick and Chater (1978), 41 C.C.C.(2d) 532 (Ont. H.C.), refd to. [para. 33].

R. v. Fitzgerald and Schoenberger (1981), 61 C.C.C.(2d) 504 (Ont. H.C.), refd to. [para. 33].

R. v. Collins (1989), 32 O.A.C. 296; 48 C.C.C.(3d) 343 (C.A.), refd to. [para. 33].

R. v. Rezaie (M.) (1996), 96 O.A.C. 268; 112 C.C.C.(3d) 97 (C.A.), refd to. [para. 34].

R. v. Bain, [1992] 1 S.C.R. 91; 133 N.R. 1; 51 O.A.C. 161; 69 C.C.C.(3d) 481, refd to. [para. 47].

R. v. Rose (J.), [1998] 3 S.C.R. 262; 232 N.R. 83; 115 O.A.C. 201; 129 C.C.C.(3d) 449, refd to. [para. 68].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321; 86 C.C.C.(3d) 97; 14 Alta. L.R.(3d) 1; 25 C.R.(4th) 137, refd to. [para. 86].

R. v. Creighton (D.J.) and Crawford (C.), [1995] 1 S.C.R. 858; 179 N.R. 161; 81 O.A.C. 359; 96 C.C.C.(3d) 481, refd to. [para. 87].

R. v. Moscato and Thurston, [1995] O.J. No. 3712 (Gen. Div.), refd to. [para. 98].

R. v. Kendall and McKay (1987), 20 O.A.C. 134; 35 C.C.C.(3d) 105 (C.A.), refd to. [para. 98].

R. v. Tom (T.), [1997] O.A.C. Uned. 365 (C.A.), refd to. [para. 98].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 41 C.C.C.(3d) 385, refd to. [para. 99].

R. v. B.M. (1998), 115 O.A.C. 117; 42 O.R.(3d) 1 (C.A.), refd to. [para. 105].

R. v. Cuthbert (D.A.) (1996), 72 B.C.A.C. 227; 119 W.A.C. 227; 106 C.C.C.(3d) 28 (C.A.), affd. [1997] 1 S.C.R. 8; 208 N.R. 303; 86 B.C.A.C. 81; 142 W.A.C. 81; 112 C.C.C.(3d) 96, refd to. [para. 105].

R. v. Cross (R.) (1996), 112 C.C.C.(3d) 410 (Que. C.A.), leave to appeal refused (1997), 215 N.R. 160; 114 C.C.C.(3d) vi (S.C.C.), refd to. [para. 105].

R. v. Pelletier (1986), 29 C.C.C.(3d) 533 (B.C.C.A.), refd to. [para. 111].

Makin v. New South Wales (Attorney General), [1894] A.C. 57 (P.C.), refd to. [para. 116].

R. v. L.E.D., [1989] 2 S.C.R. 111; 97 N.R. 321; 50 C.C.C.(3d) 142, refd to. [para. 116].

R. v. Olah (S.) and Rushton (J.D.) (1997), 100 O.A.C. 1; 115 C.C.C.(3d) 389 (C.A.), leave to appeal refused (1998), 227 N.R. 147; 121 C.C.C.(3d) vi (S.C.C.), refd to. [para. 117].

R. v. Court (G.R.) and Monoghan (P.D.) (1995), 81 O.A.C. 111; 99 C.C.C.(3d) 237 (C.A.), refd to. [para. 117].

R. v. Valentini (D.) et al. (1999), 118 O.A.C. 1; 132 C.C.C.(3d) 262 (C.A.), refd to. [para. 118].

R. v. Eng (M.B.) (1999), 126 B.C.A.C. 238; 206 W.A.C. 238; 138 C.C.C.(3d) 188 (C.A.), refd to. [para. 128].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 117 C.C.C.(3d) 226 (C.A.), refd to. [para. 142].

R. v. Sparrow (1979), 51 C.C.C.(2d) 443 (Ont. C.A.), refd to. [para. 152].

R. v. Simpson and Ochs (1988), 81 N.R. 267; 38 C.C.C.(3d) 481 (S.C.C.), refd to. [paras. 152, 182].

R. v. Wood et al. (1989), 33 O.A.C. 260; 51 C.C.C.(3d) 201 (C.A.), refd to. [para. 152].

R. v. McMaster (R.A.) et al., [1996] 1 S.C.R. 740; 194 N.R. 278; 181 A.R. 199; 116 W.A.C. 199; 105 C.C.C.(3d) 193, refd to. [para. 156].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26; 87 C.C.C.(3d) 289, dist. [para. 168].

R. v. Marinaro (G.), [1996] 1 S.C.R. 462; 197 N.R. 21; 91 O.A.C. 117; 105 C.C.C.(3d) 95, reving. (1994), 76 O.A.C. 44; 95 C.C.C.(3d) 74 (C.A.), refd to. [para. 173].

R. v. Phillips (L.R.) (1999), 123 O.A.C. 304; 138 C.C.C.(3d) 297 (C.A.), refd to. [para. 182].

R. v. Toten (W.P.) (1993), 63 O.A.C. 321; 83 C.C.C.(3d) 5 (C.A.), refd to. [para. 183].

R. v. Lucas, [1963] 1 C.C.C. 1 (S.C.C.), refd to. [para. 183].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606; [1983] 1 W.W.R. 193; 27 C.R.(3d) 304; 136 D.L.R.(3d) 89; 67 C.C.C.(2d) 1, dist. [para. 186].

R. v. Tzimopoulos (1986), 17 O.A.C. 1; 29 C.C.C.(3d) 304 (C.A.), dist. [para. 186].

R. v. Hoilett (1991), 46 O.A.C. 168; 4 C.R.(4th) 372 (C.A.), refd to. [para. 186].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 599(1)(a) [para. 30]; sect. 635(2) [para. 48].

Authors and Works Noticed:

Elliot, Cut Throat Tactics: the freedom of an accused to prejudice a co-accused, [1991] Crim. L.R. 5, p. 17 [para. 88].

Kaufman Report - see Ontario, Attorney General Report, The Commission Proceedings Involving Guy Paul Morin (1998).

Ontario, Attorney General Report, The Commission Proceedings Involving Guy Paul Morin (Kaufman Report) (1998), vol. 2, pp. 1151 to 1157 [para. 183].

Counsel:

Frank Addario and Jonathan Dawe, for the appellant, Suzack;

Timothy E. Breen, for the appellant, Pennett;

C. Jane Arnup and Carol A. Brewer, for the respondent.

These appeals were heard on April 22 and 23, 1999, before Morden, Doherty and Abella, JJ.A., of the Ontario Court of Appeal. Doherty, J.A., released the following judgment for the court on January 19, 2000.