R. v. Taylor (D.), (2015) 335 O.A.C. 342 (CA)

• Judge: Watt, Tulloch and Benotto, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 03, 2014
• Jurisdiction: Ontario
• Citations: (2015), 335 O.A.C. 342 (CA);2015 ONCA 448

R. v. Taylor (D.) (2015), 335 O.A.C. 342 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JN.029

Her Majesty the Queen (respondent) v. Daine Taylor (appellant)

(C54096; 2015 ONCA 448)

Indexed As: R. v. Taylor (D.)

Ontario Court of Appeal

Watt, Tulloch and Benotto, JJ.A.

June 19, 2015.

Summary:

The accused was found guilty by a jury of second degree murder. He appealed the conviction.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 4341.2

Procedure - Jury - Evidence - Leaving copies of transcripts, statements and exhibits with jury - Taylor was charged with murder - The testimony of two Crown witnesses was inconsistent with the pre-trial recorded statements they made to the police (they recanted the part of their statements in which Taylor had admitted to stabbing someone) - The pre-trial statements were admitted as an exception to the hearsay rule, the witnesses were cross-examined on the statements, and the statements (recordings and transcripts) were filed as exhibits and left with the jury - Taylor appealed his conviction, arguing that the trial judge erred by (1) permitting the out-of-court statements to go to the jury; and (2) failing to send transcripts of the witnesses' cross-examination on their statements to go along with the exhibits - The Ontario Court of Appeal dismissed the appeal - As a general rule, things filed as exhibits went to the jury room - The trial judge instructed the jury fully on the position of the defence and the reasons why the jury should reject as untruthful the alleged admissions contained in the out-of-court statements - Jurors had to consider all of the evidence, which included exhibits - It was for them to say what was important and deserving of emphasis - The fact that trial counsel did not object to the trial judge's instructions suggested that trial fairness was not compromised - See paragraphs 114 to 119.

Criminal Law - Topic 4349.1

Procedure - Jury - Evidence - Out-of-court statements - [See Criminal Law - Topic 4341.2 ].

Criminal Law - Topic 4358

Procedure - Charge or directions - Jury or judge alone - Directions regarding circumstantial evidence - A jury found Taylor guilty of second degree murder - He appealed, arguing that the trial judge erred in his instructions on the standard of proof that was required to establish guilt based on circumstantial evidence - He submitted that the trial judge should have instructed the jury that they were required to find him not guilty unless they were satisfied that his guilt was the sole rational inference that could be drawn from the evidence as a whole - The Ontario Court of Appeal dismissed the appeal - Authoritative jurisprudence eschewed a "special instruction" or prefabricated formula to explain the standard of proof in cases that were entirely dependent on circumstantial evidence - Further, in both his preliminary and final instructions, the trial judge described without error the nature of circumstantial evidence, explained and illustrated the inference-drawing process, and repeatedly instructed the jury about the requirement that they be satisfied beyond a reasonable doubt of each essential element of the offence - These instructions fulfilled the trial judge's obligations - See paragraphs 156 to 158.

Criminal Law - Topic 4375.2

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior inconsistent statements - Taylor was charged with murder - The testimony of two Crown witnesses was inconsistent with the pre-trial recorded statements they made to the police (they recanted the part of their statements in which Taylor had admitted to stabbing someone) - The pre-trial statements were admitted as an exception to the hearsay rule - Taylor appealed his conviction, arguing that the trial judge's jury instructions should have included a catalogue of factors or circumstances that Taylor wanted the jury to consider in assessing the weight they would assign to the incriminating aspects of the out-of-court statements - The Ontario Court of Appeal dismissed the appeal - Non-direction on matters of evidence did not amount to misdirection except where the relevant item of evidence was the foundation of the defence, which was not the case here - The instructions allowed the jury to understand that they could not use the alleged admissions of complicity unless they were satisfied that Taylor was the person who made the admissions to the witnesses - The jury was instructed on the reasons why the defence said the jury should not rely on the statements - See paragraphs 98 to 103.

Criminal Law - Topic 4382

Procedure - Charge or directions - Jury or judge alone - Misdirection - What constitutes - [See Criminal Law - Topic 4375.2 ].

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See Criminal Law - Topic 4341.2 , Criminal Law - Topic 4399.9 , Criminal Law - Topic 4410 and Evidence - Topic 4765 ].

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - Taylor was charged with murder - In his jury instructions respecting post-offence conduct, the trial judge stated "If you do not or cannot find that Mr. Taylor did or said those things because he was conscious of having done what is alleged against him, you must not use this evidence in deciding or in helping you decide that Mr. Taylor committed the offence charged. On the other hand, if you find that anything Mr. Taylor did or said afterwards was because he was conscious of having done what is alleged against him, you may consider that evidence, together with all the other evidence, in reaching your verdict." - Taylor appealed his conviction, arguing that this instruction invited the jury to engage in tautological reasoning and jump directly to the issue of guilt as a precondition of the use they would make of post-offence conduct evidence - The Ontario Court of Appeal dismissed the appeal - The trial judge's error, on its own, was not fatal - First, the instructions thoroughly canvassed the defence position regarding the post-offence conduct evidence - Second, trial counsel did not object to any aspect of the instructions - Third, despite the circumstantial nature of the Crown's case, the evidence of post-offence conduct did not occupy a prominent place in proving guilt - See paragraphs 143 to 146.

Criminal Law - Topic 4410

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - General - A jury found Taylor guilty of second degree murder - Taylor appealed, arguing that Crown counsel's closing address was improper because, inter alia, she accused two Crown witnesses of lying to protect Taylor - The Ontario Court of Appeal dismissed the appeal - The two Crown witnesses were not peripheral witnesses - They were members of Taylor's posse who had material evidence to give concerning the group's activities and intentions on the night of the murder - The nature of their relationship with Taylor and whether it coloured their evidence about Taylor's conduct was a subject upon which the Crown was entitled to make submissions to the jury - Crown counsel's closing address was not misleading, nor did it create evidence or invite the jury to make findings on evidence woven from the fabric of her submissions - Her final address consisted principally of inviting jurors to draw inferences supportive of the Crown's case and to reject inferences advanced by the defence - This was not improper in a circumstantial case - Finally, trial counsel did not object to anything said or implied in the Crown's closing address - See paragraphs 129 to 135.

Criminal Law - Topic 5416

Evidence and witnesses - Witnesses - Cross-examination of Crown witnesses - [See Evidence - Topic 4765 ].

Criminal Law - Topic 5580

Evidence and witnesses - Exhibits - Viewing of by judge or jury - [See Criminal Law - Topic 4341.2 ].

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - Taylor was charged with murder - The testimony of two Crown witnesses was inconsistent with the pre-trial recorded statements they made to the police (they recanted the part of their statements in which Taylor had admitted to stabbing someone) - The trial judge permitted the Crown to introduce the pre-trial statements as an exception to the hearsay rule - Taylor appealed his conviction, arguing that neither statement was sufficiently reliable - The Ontario Court of Appeal dismissed the appeal - The most important factor in the reliability analysis was that both declarants were witnesses at trial and subject to full cross-examination on their statements and their evidence as a whole - Each declarant was more aligned in support of Taylor than at odds with him - See paragraphs 76 to 82.

Evidence - Topic 4752

Witnesses - Examination - Prior inconsistent statements - Admissibility - Foundation required - [See Evidence - Topic 1527 ].

Evidence - Topic 4761

Witnesses - Examination - Prior inconsistent statements - Cross-examination as to previous oral statements - [See Evidence - Topic 4765 ].

Evidence - Topic 4765

Witnesses - Examination - Prior inconsistent statements - Cross-examination on - By party producing the witness - Taylor was charged with murder - The Crown obtained leave under s. 9(2) of the Canada Evidence Act to cross-examine two of its own witnesses based on inconsistencies between the witnesses' prior statements and their trial testimony - The inconsistencies related primarily to admissions by Taylor that he had stabbed someone - The Crown's cross-examination extended beyond the inconsistencies and largely confirmed the truthfulness of the other statement details that coincided with each witness's trial testimony - Taylor appealed his conviction, arguing that the cross-examination exceeded what was permitted under s. 9(2) - The Ontario Court of Appeal dismissed the appeal - The Crown was permitted to ask questions which would attempt to show that the only portions of the statements recanted by the witnesses were those in which Taylor admitted complicity - It was also clear that the Crown was attempting to lay a foundation for an adverse witness application, which was a recognized purpose of cross-examination under s. 9(2) - Further, the trial judge's decision to grant leave under s. 9(2) was discretionary and entitled to deference, defence counsel did not object to the manner of cross-examination at trial, and Taylor's complaint lacked cogency when the prior statements were admitted as proof of their contents under the principled exception to the hearsay rule - See paragraphs 52 to 56.

Cases Noticed:

R. v. Carpenter (1982), 1 C.C.C.(3d) 149 (Ont. C.A.), refd to. [para. 47].

R. v. Cooper, [1970] 3 C.C.C. 136 (Ont. C.A.), refd to. [para. 48].

R. v. Dayes (M.) (2013), 310 O.A.C. 319; 301 C.C.C.(3d) 337; 2013 ONCA 614, refd to. [para. 49].

R. v. Rowbotham (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 50].

R. v. McShannock (1980), 55 C.C.C.(2d) 53 (Ont. C.A.), refd to. [para. 50].

R. v. Tran (Q.H.) et al. (2010), 264 O.A.C. 125; 257 C.C.C.(3d) 18; 2010 ONCA 471, refd to. [para. 51].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 69].

R. v. Youvarajah (Y.), [2013] 2 S.C.R. 720; 447 N.R. 47; 308 O.A.C. 284; 2013 SCC 41, refd to. [para. 69].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 71].

R. v. Chretien (E.) (2014), 321 O.A.C. 150; 309 C.C.C.(3d) 418; 2014 ONCA 403, refd to. [para. 71].

R. v. Devine (R.A.), [2008] 2 S.C.R. 283; 376 N.R. 297; 433 A.R. 380; 429 W.A.C. 380; 2008 SCC 36, refd to. [para. 72].

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R. v. Adjei (R.) (2013), 309 O.A.C. 328; 2013 ONCA 512, leave to appeal refused (2014), 474 N.R. 390 (S.C.C.), refd to. [para. 73].

R. v. Couture (D.R.), [2007] 2 S.C.R. 517; 364 N.R. 1; 244 B.C.A.C. 1; 403 W.A.C. 1; 2007 SCC 28, refd to. [para. 74].

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. 94].

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. 94].

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R. v. Demeter (1975), 25 C.C.C.(2d) 417 (Ont. C.A.), affd. [1978] 1 S.C.R. 538; 16 N.R. 46, refd to. [para. 96].

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R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60 (C.A.), refd to. [para. 113].

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

Browne v. Dunn (1983), 6 R. 67 (H.L.), refd to. [para. 122].

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R. v. R.B.B. (2001), 147 B.C.A.C. 225; 241 W.A.C. 225; 152 C.C.C.(3d) 437; 2001 BCCA 14, refd to. [para. 130].

R. v. Soobrian (K.); R. v. Beaudry (J.R.) (1994), 76 O.A.C. 7; 96 C.C.C.(3d) 208 (C.A.), refd to. [para. 130].

R. v. Figliola (M.) (2011), 281 O.A.C. 306; 272 C.C.C.(3d) 518; 2011 ONCA 457, refd to. [para. 130].

R. v. Hall (C.) (2010), 269 O.A.C. 199; 263 C.C.C.(3d) 5; 2010 ONCA 724, leave to appeal refused (2011), 423 N.R. 393 (S.C.C.), refd to. [para. 139].

R. v. White (D.R.), [2011] 1 S.C.R. 433; 412 N.R. 305; 300 B.C.A.C. 165; 509 W.A.C. 165; 2011 SCC 13, refd to. [para. 142].

R. v. Jaw (S.G.), [2009] 3 S.C.R. 26; 393 N.R. 246; 464 A.R. 149; 467 W.A.C. 149; 2009 SCC 42, refd to. [para. 145].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 148].

R. v. Cooper, [1978] 1 S.C.R. 860; 14 N.R. 181, refd to. [para. 152].

R. v. Griffin (J.) et al., [2009] 2 S.C.R. 42; 388 N.R. 334; 2009 SCC 28, refd to. [para. 152].

R. v. Tombran (T.) (2000), 129 O.A.C. 51; 142 C.C.C.(3d) 380 (C.A.), leave to appeal refused (2000), 265 N.R. 395 (S.C.C.), refd to. [para. 154].

R. v. Fleet (M.) (1997), 104 O.A.C. 394; 120 C.C.C.(3d) 457 (C.A.), refd to. [para. 154].

R. v. Mayuran (S.), [2012] 2 S.C.R. 162; 431 N.R. 232; 2012 SCC 31, refd to. [para. 155].

Counsel:

John Rosen and Paul Alexander, for the appellant;

Amy Alyea, for the respondent.

This appeal was heard on November 3, 2014, before Watt, Tulloch and Benotto, JJ.A.. of the Ontario Court of Appeal. Watt, J.A., delivered the following judgment for the court on June 19, 2015.