C.A.C. No. 112352
NOVA SCOTIA COURT OF APPEAL
Cite as: R. v. Fleet, 1996 NSCA 150
Clarke, C.J.N.S.; Hart and Jones, JJ.A.
BETWEEN:
WADE GERALD FLEET ) Duncan R. Beveridge
) for the Appellant
Appellant )
- and - )
) Kenneth W. F. Fiske, Q.C.
) for the Respondent
HER MAJESTY THE QUEEN )
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Respondent ) Appeal Heard:
) May 28, 1996
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) Judgment Delivered:
) August 15, 1996
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THE COURT: Appeal dismissed against conviction for first degree murder contrary to s. 235(1) of the Criminal Code, per reasons for judgment of Clarke, C.J.N.S.; Hart and Jones, JJ.A. concurring.
CLARKE, C.J.N.S.:
Pursuant to s. 675(1) of the Criminal Code, Wade Gerald Fleet appeals against his conviction of the first degree murder of Donald Findlay. He was tried before Associate Chief Justice Palmeter and a jury. He was sentenced to life imprisonment without becoming eligible for parole for twenty-five years.
Findlay died on October 1, 1993 as a result of injuries he received while incarcerated at the Halifax Correctional Centre where, at the same time, Fleet was also imprisoned. Findlay and Fleet were both residents of the community of Moser's River. They and their families knew each other. The men did not enjoy good relations.
On July 14, 1992, a collision occurred at Moser's River between a truck driven by Findlay and a car driven by Barkhouse who was also a resident of the same community. Fleet was among those who gathered at the scene. Fleet and Findlay exchanged nasty words which included threats to kill each other. A sister of Fleet's girlfriend was injured in the accident. There was a suggestion in the evidence that as a result Fleet harboured a grudge against Findlay. Arising from the accident Findlay was charged with dangerous driving and Barkhouse with mischief.
On July 16, 1992, Dorothy, the wife of Findlay, met Fleet at the local store. Angry words were exchanged. Fleet asked if Findlay was in hiding. Dorothy said he would not hide from the "likes" of Fleet. Fleet said Findlay should be scared because he was going to kill him.
On September 28, 1993, Findlay pled guilty to the charge of dangerous driving. He was sentenced to serve an intermittent term at the Halifax Correctional Centre beginning on Friday, October 1, 1993. On September 28, 1993, Fleet's girlfriend, Janna
Poulin, telephoned Fleet at the Correctional Centre and told him that Findlay would be serving some weekends, beginning Friday, October 1.
The evidence indicated that Fleet was excited at the prospect of Findlay coming to the Centre. He told some of the inmates he was going "to get" Findlay. He asked several inmates to assist in assaulting Findlay. They refused. One inmate, Paul Lively, at first agreed but later declined.
Lively was a person who had experience in boxing and especially kick-boxing. Fleet asked Lively for some instructions. Lively provided Fleet with demonstrations of power punches. He also showed Fleet the kinds of kicks that would subdue a larger person. Emphasis was placed on vulnerable areas including the solar plexus, neck and jaw. Lively suggested using a foot when striking in the area of the neck. The evidence indicated Findlay weighed about 200 pounds and Fleet between 150 and 160 pounds.
Findlay appeared nervous when he arrived at the Correctional Centre on Friday evening, October 1, 1993. He was assigned a bed in dormitory 4 of D block. Fleet was in dormitory 1 which was down the hall from 4.
Fleet came into dormitory 4 about 9:30 p.m. He directed some words to Findlay who was resting on his bed and did not reply. Fleet left.
Fleet, in the company of a large group of inmates, returned to dormitory 4 about 10:00 p.m. One of them closed the barred door. Findlay was still lying on his bed. Fleet directed a number of unpleasant remarks to Findlay including calling him a rat and an asshole. Findlay did not reply. Fleet was smoking a cigarette. He flicked the butt at Findlay. Then Fleet began to punch Findlay in his upper body and around his head. Findlay did not respond except to raise his arms to cover his face and head. The evidence of the number of punches Fleet administered to Findlay varies from two to fifteen, although one said as many as twenty-four. After that Fleet jumped on Findlay's bed, grabbed hold of a bar on the upper frame of the bunk and gave Findlay a number of short and sharp kicks to the head and neck. Again the estimates vary from as low as two to as high as eight. It appears from the evidence that the assault lasted less than one minute. One inmate shouted to Fleet to stop the punching and kicking. Findlay made no comment and offered no resistance. Fleet and those who had arrived with him returned to dormitory 1.
Findlay appeared unconscious to those who remained in dormitory 4. He did not regain consciousness after they splashed water on his face nor after guards who had been alerted tried to resuscitate him. Findlay was taken by ambulance to the Victoria General Hospital in Halifax where he was pronounced dead around 11:00 p.m.
The cause of death, according to the medical evidence, was subarachnoid hemorrhage due to a tear of the left vertebral artery associated with blunt trauma to the head and neck. There were four distinct areas of blunt trauma about the head and neck.
There is little dispute about the essential facts from which the above summary is drawn.
Fleet was charged with first degree murder contrary to s. 235(1). Thirty-nine witnesses were called at his trial before Associate Chief Justice Palmeter and the jury. He was found guilty as charged.
One of the Crown witnesses was Daniel Downey. He gave evidence concerning conversations he had with Fleet at the Colchester Correctional Centre in early 1994 where Downey was an inmate and Fleet became one upon his transfer. Reference to this aspect of the evidence will be discussed later.
Counsel of the appellant Fleet advances ten grounds of alleged errors made by the trial judge. Some of these overlap. I propose, by the process of consolidation, to reduce them to five for present purposes.
1. The trial judge improperly instructed the jury on the elements of the offence of first degree murder under s. 229(a) relating to intention, and planning and deliberation. He failed to properly relate the evidence to these elements. (grounds 7 and 8)
2. The trial judge improperly instructed the jury on the issue of opportunity. (ground 5)
3. The trial judge improperly instructed the jury concerning the assessment of the credibility of unsavory Crown witnesses, in particular Mr. Downey, and the effect of prior inconsistent statements. (grounds 1 and 2)
4. The trial judge failed to instruct the jury respecting the inaccuracies in the oral and written submissions of the Crown's theory of the case. (grounds 3, 4 and 6)
5. The trial judge erred in permitting the redirect examination of one witness and the introduction of character evidence of the accused. (grounds 9 and 10)
I shall now refer to each of the above.
1. The Offence of First Degree Murder - s. 229(a)
Section 229(a) of the Criminal Code provides:
Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;
The appellant argues that the trial judge failed to emphasize to the jury the necessity of finding that Fleet had knowledge that the bodily harm inflicted on Findlay would likely cause the death of Findlay and further, that his definition of reckless was insufficient. Counsel for Mr. Fleet asserts that the trial judge,
... erred in not bringing home to the jury that it would have to find beyond a reasonable doubt that the Appellant planned to commit an assault on Mr. Findlay of such a nature to cause bodily harm of such grave and serious nature that the accused knew that it was likely to result in Mr. Findlay's death. It is respectfully submitted that it was not brought home to the jury that the planning of the assault of such a serious nature had to occur after the intent to murder had been formed. ...
Counsel relies on the following excerpt in the decision of Cory, J. in R. v. Cooper (1993), 78 C.C.C. (3d) 289 at p. 295 (s.212 is now s. 229).
The concept of recklessness was considered by this court in R. v. Sansregret (1985), 18 C.C.C. (3d) 223, 17 D.L.R. (4th) 577, [1985] 1 S.C.R. 570. At p. 233 it was said:
[Recklessness] is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance.
The same words can apply to s. 212(a)(ii) with this important addition: it is not sufficient that the accused foresee simply a danger of death; the accused must foresee a likelihood of death flowing from the bodily harm that he is occasioning the victim.
It is for this reason that it was said in Nygaard that there is only a "slight relaxation" in the mens rea required for a conviction for murder under s. 212(a)(ii) as compared to s. 212(a)(i). The position was put in this way at p. 436:
... [where] two accused form the intent to repeatedly and viciously strike a person in the head with a baseball bat realizing full well that the victim will probably die as a result. None the less they continue with the bone splintering, skull-shattering assault. The accused ... must have committed as grave a crime as the accused who specifically intends to kill ... I would conclude that the crime defined in s. 212(a)(ii) [now s. 229(a)(ii) can properly be described as murder and on a "culpability scale" it varies so little from s. 212(a)(i) as to be indistinguishable.
The intent that must be demonstrated in order to convict under s. 212(a) (ii) has two aspects. There must be (a) subjective intent to cause bodily harm; (b) subjective knowledge that the bodily harm is of such a nature that it is likely to result in death. It is only when these two elements of intent are established that a conviction can properly follow.
Mr. Justice Cory continued at p. 300:
The appellant seeks to uphold the order directing a new trial on two other grounds. The first, and the more important of these, is the issue raised before the Court of Appeal that the trial judge did not adequately instruct the jury that the Crown must establish that Cooper knew that the bodily injury that he was inflicting was likely to cause the death of the victim. I cannot agree with that contention.
It is true that from one or two excerpts from the charge the jury could have inferred that an intent to cause bodily harm was all that was required in order to convict. Yet on numerous occasions the trial judge stated and repeated that the jurors had to be satisfied beyond a reasonable doubt that Cooper meant to cause bodily harm that he knew was likely to cause death and was reckless whether death ensued or not.
In his charge to the jury, the trial judge outlined the elements that had to be proved beyond a reasonable doubt for first degree murder, second degree murder and manslaughter. The first four elements of the offence being the issues of identity, time and place, cause of death and the unprovoked assault were not in dispute. It was the element of intention pertaining to first and second degree that was very much in dispute.
The trial judge told the jury the Crown could prove intention in two ways. The first was by proving beyond a reasonable doubt that Fleet actually intended to cause Findlay's death.
Moving to the second, he said:
On the other hand, if you have a reasonable doubt about whether or not Mr. Fleet actually intended or meant to cause the death of Mr. Findlay, you must consider whether or not the Crown has proved this ingredient the second way. As I said earlier, the second way the Crown can prove this ingredient is by proving that Mr. Fleet meant to cause bodily harm which he knew was likely to cause death and was reckless whether or not death ensued. This second way has three separate parts. I will discuss these separately.
The first part is that Mr. Fleet intended to cause bodily harm to Mr. Findlay. When you decide whether or not Mr. Fleet intended to cause bodily harm to Mr. Findlay, you should use the same procedure I told you about in regard to the intent to kill. In other words, in deciding whether Mr. Fleet intended to cause bodily harm, you may, but you are not required to rely on the common sense inference that a person intends the natural consequences of his conduct. If bodily harm was a natural consequence of Mr. Fleet's conduct, you are entitled to find that bodily harm was intended. However, you are not required to come to this conclusion. In the end, you should look at all the surrounding circumstances in order to decide whether Mr. Fleet actually intended to cause bodily harm.
The second part of reckless is that Mr. Fleet knew that the bodily harm would be likely to cause the death of Mr. Findlay. As you probably know, knowledge is like intention - they are both states of mind. Therefore, you should decide what Mr. Fleet knew, the same way you decide what he intended to do, and that is by looking at all of the surrounding circumstances.
The third part of reckless is that Mr. Fleet was reckless about whether or not his conduct caused the death of Mr. Findlay. The word 'reckless' does not have a special meaning in the law. Therefore, you should give it the ordinary meaning, which is careless of the consequences of one's actions, heedless, or lacking in prudence or caution. In other words, if a person knows that the bodily harm he or she is inflicting on the victim will be likely to cause death, but goes ahead and inflicts it anyway, that person is reckless or heedless of the consequences.
Let me summarize what I have said about the ingredient of intention. The Crown can prove this ingredient in two ways. The first is by proving that Mr. Fleet actually intended to cause the death of Mr. Findlay. The second is by proving that Mr. Fleet meant to cause bodily harm which he knew was likely to cause death, and was reckless about whether or not it caused death. The second part of this is comprised of three parts:
(1) That Mr. Fleet meant to cause the bodily harm to Mr. Findlay;
(2) That Mr. Fleet knew that the bodily harm was likely to cause death; and
(3) That Mr. Fleet was reckless whether or not his conduct caused the death of Mr. Findlay.
Now, I wish to emphasize one thing about this fifth ingredient. The Crown only has to prove this ingredient in one of the two ways I told you about. It does not have to prove it both ways. Therefore, if you are satisfied beyond a reasonable doubt that Mr. Fleet either meant to cause the death or meant to cause the bodily harm which he knew was likely to cause death and was reckless about whether or not it caused death, then the Crown has proved this ingredient.
This excerpt and a review of the charge in general reveals that on numerous occasions the trial judge repeated that the jury must not only find that Fleet intended to cause bodily harm, but also he knew bodily harm would likely cause the death of Findlay and was reckless whether or not death ensued. There was nothing improper in the definition of recklessness that was put to the jury. He told the jury it was to be given its ordinary meaning, which he described as "careless of the consequences of one's actions, heedless or lacking in prudence or caution".
On more than one occasion he instructed the jury that on the subject of intention they must consider the "totality of the evidence" and regardless of the evidence emphasized by him or by either counsel, the jurors must decide "which evidence is the most weighty". He said:
Remember, it is the totality of the evidence which you must consider when you decide whether or not Mr. Fleet meant to cause the death of Mr. Findlay or meant to cause bodily harm which he knew was likely to cause death and was reckless about whether or not it caused death. You must not consider each individual piece of evidence in isolation. It is the totality of the evidence that you must consider.
The trial judge undertook a comprehensive review of the evidence relating to intention. He was careful to explain the evidence bearing on intent from the standpoint of both the Crown and the defence.
Counsel for the appellant alleges there were at least eight instances where the trial judge referred to evidence relevant to intent when it was not. From a review of the record I am not satisfied that the trial judge committed errors in this respect. I do not believe the trial judge is specifically required to instruct the jury that the intent under s. 229(a)(ii) is a "slight relaxation" of the intent required under s. 229(a)(i). It is for the trial judge to take that matter into account in his general instructions which in this instance I am satisfied he did.
The final element the Crown must prove to establish first degree murder is planning and deliberation. The appellant argues the trial judge failed to relate intention to planning. He suggests the trial judge failed to instruct the jury that they must be satisfied that Fleet planned to commit an assault on Findlay of a grave and serious nature that he knew was likely to result in Findlay's death. Counsel submits that the jury must be told that they must find that the planning of Fleet's assault on Findlay (s. 229(a)(ii)) occurred after Fleet had formed the intent to murder (s. 229(a)).
On this issue the following is what the trial judge said:
The Crown must prove all of the ingredients I just told you about in order to prove either first or second degree murder. However, when a person is charged with first degree murder, there is an additional element the Crown must prove. S. 231(2) of the Criminal Code states, "Murder is first degree murder when it is planned and deliberate." Therefore, you must be satisfied beyond a reasonable doubt that the alleged murder was planned and deliberate before you can return a verdict of guilty on the charge of first degree murder. However, if you are satisfied that the Crown has proven all the ingredients I just told you about, but you are not satisfied that the alleged murder was planned and deliberate, then Mr. Fleet is not guilty of first degree murder but may be guilty of second degree murder.
What is the meaning of "planned"? The words "planned" and "deliberate" have different meanings. You should give the word "planned" its ordinary meaning, that is, arranged beforehand. In other words, a person plans to do something if he or she forms a design or scheme for doing it. However, you should understand that planning something is not the same as doing it intentionally. Therefore, a person can mean to kill someone without having planned to kill the person. For example, suppose Jane Smith has a bad temper. She gets into an argument with someone and kills the other person during the argument, even though she was not intending to kill the other person before the argument started. In this example, Jane Smith might have intended to kill the other person, but she did not plan to kill him.
The word "deliberate" also means something more than intentional. It means carefully thought out, not hasty or rash. A person commits deliberate murder when he or she thinks about the consequences before committing the murder. In other words, he or she thinks about the advantages or disadvantages of committing murder.
I am going to very briefly refer you to some of the evidence that you should consider in regard to determining whether or not you find the murder was planned and deliberate.
(1) The evidence would indicate, in my opinion, that, first, Mr. Fleet was aware Mr. Findlay was coming in the Correction Centre the night in question, and was, according to some witnesses, excited about it.
(2) Mr. Fleet told many people that he planned to "get him", to get Mr. Findlay, and constantly talked about his dislike of Mr. Findlay.
(3) He attempted to hire Paul Lively to beat up Mr. Findlay, without success.
(4) He took training from Lively in regard to power punching and power kicking, how to take a man down, and where disabling kicks and punches were to land.
(5) Mr. Fleet told Edgar Enslow that he was going to get Mr. Findlay. Mr. Enslow told him, in effect, to leave it be, but Mr. Fleet did not.
(6) Mr. Fleet asked Pat Hape to assist him in beating Mr. Findlay. Mr. Hape refused.
(7) Mr. Fleet asked Mr. Ford and two friends, according to the evidence of Ford, to help by holding Findlay while Fleet beat him. They refused.
(8) Mr. Fleet told many people in the Correction Centre that he was going to get Mr. Findlay, and most of the inmates in D. Block, as I understand the evidence as it came out, were aware that something was going to happen this night and was aware of a fight.
(9) Mr. Fleet's comment to Ken Armsworthy of, "oh, well," when Armsworthy said, "I think you killed him." If believed, this evidence would indicate no concern that he had in fact killed Mr. Findlay.
(10) In early 1994 Mr. Fleet allegedly told Daniel Downey that he had meant "to kill the motherfucker."
(11) All of these pieces of evidence must be considered by you in determining whether or not there was planning and deliberation.
As I indicated to you, on the question of intent, it is the totality of the evidence which you must consider, not each little piece of the evidence in isolation.
It is evident from the trial judge's charge that the jurors were instructed that they must be satisfied beyond a reasonable doubt that the murder was planned and deliberate. Having previously reviewed the element of intention and the evidence relating to that issue, it was not necessary for the trial judge to undertake such a review a second time.
The appellant also claims that the points of evidence as detailed above by the trial judge were not relevant to the issue of whether Fleet had planned and deliberately murdered Findlay. The trial judge provided a rather detailed review of the evidence which he considered relevant to this issue. The fact that the same portions were also relevant to the element of intent did not preclude or exempt their relevance when considering planning and deliberation.
The trial judge concluded his remarks by reminding the jury of the proof required for each of first degree murder, second degree murder and manslaughter. In my opinion the charge in relation to this ground of appeal was fair, balanced and appropriate. I would dismiss the ground.
2. Opportunity
The trial judge said:
In this trial, you heard evidence that may indicate to you that Mr. Fleet had the opportunity to commit the offence charged, because he was in jail, because of the code of silence which is suggested, because of what would happen to rats, if they talked, and possibly what inmates would be able to protect other inmates. You cannot find Mr. Fleet guilty on the basis of opportunity standing alone. There must also be evidence of other inculpatory circumstances indicating Mr. Fleet's guilt of murder. If there is such evidence that you accept, you may return a verdict of guilty as charged, but it is for you to determine, on the basis of the evidence before you.
The appellant contends this instruction was in error because the identity of the accused had been established and evidence of opportunity had no probative value to the determine whether or not Fleet intended to cause the death of Findlay or intended to cause him bodily harm that was likely to cause death and was reckless whether or not death ensued.
The record reveals that evidence was adduced from witnesses called by the Crown to support its position that Fleet wanted to settle a grudge he carried against Findlay for the events that occurred at the time of the motor vehicle accident on July 14, 1992. Further there was evidence that Fleet became excited at the prospect of Findlay's arrival at the Correctional Centre and began making plans for an attack on Findlay. Numerous inmates, testifying as witnesses for the Crown, described a "code of silence" honoured by inmates that they would not talk about events that occurred within the prison. The record indicates that Fleet was aware of this "code of silence". All of this, argued the Crown, gave Fleet an opportunity to settle an old score.
The trial judge properly cautioned the jury of the use to which such evidence could be put by directing the jury that, "you cannot find Mr. Fleet guilty on the basis of opportunity standing alone". I would not consider the instruction a reversible error on the part of the trial judge.
3. Credibility of Unsavoury Crown Witnesses and
Especially that of Daniel Ray Downey
In early 1994, Fleet was transferred to the Colchester Correctional Centre. It was there he met inmate Daniel Ray Downey.
According to Downey they began to talk about the murder of Findlay. He said that Fleet told him that when he learned Findlay was coming to jail, he sharpened the end of a toothbrush in a blade-like fashion so that he could get Findlay. However, Findlay was not placed in the same dormitory as Fleet so Fleet resorted to other means. According to Downey, Fleet told him how he flicked a butt at Findlay and then started to punch and kick him in the head, neck, shoulders and adam's apple. Downey said he drew a diagram of the layout of the dormitory where the assault occurred. Downey testified that Fleet told him and other inmates more than once that he "meant to kill the motherfucker" (meaning Findlay). Downey observed that Fleet showed no remorse and in fact after returning from a visit to his lawyer, Fleet was laughing about a photograph he was shown of Findlay taken during Findlay's autopsy. Downey had batches of notes he had made. Downey contacted the police, met with them, and gave them statements. He was a Crown witness at trial. He was vigorously cross-examined.
Between 1989 and 1994, Downey had accumulated a record of eleven criminal convictions. At the times material to these events, other charges were pending. Downey freely admitted that his recent past had been a life of crime. He admitted that he was given to lies and was not shocked at the suggestion he was a liar.
The events involving Downey and Fleet occurred at a stage in Downey's criminal career where he could have benefited from some assistance in his own upcoming criminal proceedings, including the possibility of obtaining concurrent time. However, at the trial of Fleet he testified he had not gone to the police on this occasion seeking any benefit in return for his evidence. He claimed he had received none. This was confirmed by the evidence of the police, although obviously doubted by the defence. There was evidence that on earlier occasions during his criminal career, Downey had made and attempted to make bargains with the Crown concerning pending charges and variations in his terms of release and parole.
Respecting the evidence of Downey, the appellant contends the trial judge erred by failing to give the jury a clear and sharp warning concerning the acceptance of his evidence of the nature described by the Supreme Court of Canada in Vetrovec. (See Vetrovec v. The Queen; Gaja v. The Queen (1982), 67 C.C.C. (2d) 1, at pp. 11, 13-14, 17-18, 19.)
Counsel also alleges the trial judge failed to adequately instruct the jury on the use that could be made of Downey's prior inconsistent statements of which there were several instances. Further, he says the trial judge should have told the jury that a lie can taint the entire evidence of a witness and in this instance, Downey.
The trial judge gave the jury the customary general directions concerning the assessment of evidence including that they are entitled to believe the evidence of a witness in whole, in part or not at all and how in either of these events weight should be attached. He pointed out that in some instances a witness may give evidence that is false because the witness has a reason for hiding the truth. He told the jury that where they doubt the accuracy of evidence given by a witness, the benefit of that doubt must be given to the accused and not to the Crown.
The Crown called eleven witnesses who had criminal records, eight of whom were eye witnesses. The trial judge appropriately directed the jury respecting the use of criminal records, including Mr. Downey's, in the assessment of the credibility of their evidence.
When dealing with the motive witnesses, including Mr. Downey, might have for testifying, the trial judge said:
... You should also keep in mind the potential motive of each witness to give evidence favourable to the Crown and thus try to curry favour with the prison authorities in order that he might win an early release. All of these matters may be considered by you when deciding whether you accept all or part of the evidence of each of these witnesses.
After he instructed the jury that they could accept all, a part or none of the evidence of a witness, he referred to the eleven witnesses, including Downey, called by the Crown who had criminal records. He gave the jury a special warning concerning their evidence. He said:
I wish now to deal with what we refer to, basically, unsavoury witnesses - in law we call them unsavoury witnesses. I will now give you a special warning about the testimony of many of the Crown witnesses who had substantial criminal records, substantial criminal records, really - witnesses Armsworthy, Lively, Enslow, Caldwell, Ford and Downey, they had pretty extensive records.
You will recall what I told you earlier about the credibility of witnesses. You should consider the things I told you when you decide whether or not you believe these witnesses' evidence. In addition, I have to tell you that you have to be extremely cautious in accepting each witness's testimony. Sometimes it is unsafe for you to rely on each witness's testimony alone, because many of them admitted to a series of criminal convictions and might be considered to have an unsavoury reputation.
You should examine all the other evidence in this case and look for evidence that supports or confirms each witness's testimony. What you should look for is evidence that agrees with the important parts of each witness's evidence and makes you more confident that his testimony is true. There should be some examples of independent evidence coming from other sources that is capable of supporting or confirming the evidence of some of the witnesses. It is for you to decide whether or not that evidence and evidence of a similar nature does, in fact, support or confirm each witness. Basically, the evidence of each of the eyewitnesses corroborates the evidence of each of the others in some material parts.
The trial judge then gave the jury a separate caution regarding the evidence of Downey:
In the case of Mr. Downey, you must be careful. His evidence has discrepancies and inconsistencies but not necessarily in the evidence of what he was allegedly told by Mr. Fleet. That is for you to decide. Balanced against that is that you must ask yourself how he became aware of the material parts of the assault if he was not told by Mr. Fleet. Remember, you can accept the whole, or parts, or none of these witnesses' testimony. It is for you to decide.
The trial judge emphasized once more the caution that the jury should have when considering the evidence of unsavoury witnesses:
In the end, ask yourself whether enough of the important parts of each witness's testimony has been confirmed to persuade you that his story is true. Ask yourself whether this evidence has convinced you that each witness's story is true or that part of it is true and that it is safe for you to rely upon it. I must tell you that you are not legally required to find such support before you can rely on each witness's testimony. You do not need support; it is up to you. You may rely on it without finding support if you are convinced beyond a reasonable doubt that it is true. However, it is sometimes dangerous for you to accept unsavoury witnesses' or what could be called unsavoury witnesses' evidence unless you find some support for it.
In R. v. Bevan (1993), 82 C.C.C. (3d) 310, the Supreme Court of Canada confirmed that a trial judge has a wide discretion when deciding whether to give a jury a Vetrovec caution. Mr. Justice Major wrote at pp. 326-7:
While under Vetrovec a caution to the jury is a matter of the trial judge's discretion and is not required in all cases involving testimony of accomplices or accessories after the fact, there are some cases in which the circumstances may be such that a Vetrovec caution must be given. The trial judge's discretion whether to give a Vetrovec warning should generally be given wide latitude by appellate courts. ...
Upon an examination of the charge, I am satisfied that the trial judge gave the jury a warning that was adequately clear and sharp respecting the evidence of each of the unsavoury witnesses and in particular that of Downey. In fact, after reviewing the record, it is my opinion that there was sufficient evidence which, if believed by the jury, would sustain the conviction even if the evidence of Downey was totally rejected.
There are three recent decisions of this Court in which comment is made about the necessity of a Vetrovec caution. I do not consider these decisions to be at variance with the conclusion I have reached concerning this issue. R. v. Pepin (1990), 98 N.S.R. (2d) and 263 A.P.R. 238, Matthews, J.A. at p. 248; R. v. Waite (M.T.) and Scallion (J.H.), (1992), 115 N.S.R. (2d) and 314 A.P.R. 392, Jones, J.A. at pp. 419-420 (leave to appeal refused); R. v. Pittman (G.W.) (1993), 117 N.S.R. (2d) 271, Hart J.A. at pp. 295-302 (affirmed on appeal).
It is evident from the caution the trial judge gave the jury concerning Downey that it was instructed to assess his credibility having regard to those inconsistencies that were material rather than trivial in nature. This is what the judge said concerning the assessment of Downey's evidence.
Also we have the evidence of Mr. Downey that he would be under a disadvantage by testifying, and there is no evidence before the court and the jury that Mr. Downey received any benefit for his testimony.
On cross-examination there were many discrepancies and inconsistencies, however, not necessarily, in my opinion, in regard to the information which he said that he got from Mr. Fleet in regard to the fight, the assault. Mr. Downey admitted to being a criminal and sometimes a liar.
The question to be asked is how he knew the details of the assault if he had not been told by Mr. Findlay. A jury cannot speculate on what Mr. Fleet had or had not seen. A jury can only draw inferences from proven fact.
The appellant suggests the trial judge failed to identify specific discrepancies and inconsistencies in the evidence of Downey. The examples deal primarily with the position taken by the appellant that Downey had sought benefits from the authorities in return for his testimony at the Fleet trial.
The evidence of Constable Pritchard of the R.C.M.P. was consistent with that of Downey. They both testified that there was no deal nor any benefit to accrue to Downey for his evidence. Evidence is lacking to support the contention of the appellant, therefore, it becomes unnecessary to address each example cited by the appellant on this point.
My conclusion is that the instructions given by the trial judge, both general to the unsavoury witnesses and specific to Downey, were sufficient and adequate for the jury to be in a position to decide what evidence they should accept and whom, and to what extent, they should believe. I would dismiss this ground.
4. The Theory of the Crown and the Position of the Defence
The appellant asserts that there were inaccuracies in the oral and written submissions made to the jury by the Crown. In addition his counsel objects to the length of the written summary the Crown gave the trial judge in preparation for his charge to the jury. Counsel for the appellant says that the trial judge erred in failing to correct the alleged inaccuracies and as a result Fleet was prejudiced.
The trial judge asked counsel to provide him with written summaries of the theory of the Crown and the position of the defence. He read each of them to the jury verbatim. The trial judge told the jury, "they are quite brief".
Counsel for the appellant makes a number of solid points concerning some of the references in the Crown's written statement to the judge, and in turn read by the judge to the jury, that they were in the nature of argument more than a statement of position.
The trial judge has a considerable discretion in these matters. Some trial judges prepare their own summaries of the positions of the parties; others do as the trial judge did here by relying upon counsel. Trial judges should exercise some caution to ensure that summaries prepared by counsel do not provide an access route to the jury for positions that are not fully supported by the evidence.
The trial judge addressed the matter of submissions by counsel when he told the jury:
As I told you in my opening remarks, what counsel say in their addresses to you is not evidence. Counsel cannot give evidence, because they are not sworn and they are not subject to cross-examination. Counsel can make submissions to you on the evidence presented in this trial, but they cannot comment or suggest that you speculate on any matter which has not been presented in evidence. To do so would be highly improper and, in some cases, perhaps highly prejudicial to one side or the other.
It is also improper for counsel to make gratuitous comments to you in closing addresses, and if you detect any you should give them very little weight.
It is also not proper for counsel to put before you for consideration any matter not proven as a fact or established by the evidence. If, in your opinion, either counsel has done so in this case, then I urge you to disregard any such comment or suggestion.
You cannot speculate, but you can draw inferences from the proven facts, as I will explain later to you in this charge.
In addition, it is wrong for counsel to express personal opinions in court at any time and certainly in closing addresses. Words such as "I think", "I suppose", "I believe", or "I am of the opinion" are just not appropriate.
It may be semantics, but it is your opinion as jurors of the proven facts based on the evidence which is important, not the views or opinions of counsel, nor of myself. You should not be swayed in any way by the personal comments or opinions of counsel or by myself.
The trial judge instructed the jury on several occasions that they must decide the facts without regard to the suggestions of counsel or the judge. After examining the record, I am not persuaded that the language contained in the theory advanced by the Crown or the oral submissions of its counsel would have swayed the jury in its deliberations in a manner prejudicial to the appellant.
5. Redirect Examination and Character Evidence
The first is an issue raised by counsel of the appellant concerning a redirect examination by the Crown of its witness, Daniel Downey. It related to a series of notes made by Downey before he met with officers of the R.C.M.P. on February 25, 1994 and a second set of notes he made after this meeting. During the course of the trial they came to be called the first batch and the second batch.
The Crown did not examine Downey on the two batches of his notes on direct. During cross-examination by Mr. Beveridge, Downey read through the second batch of notes and made no mention of anything said by Fleet about Fleet's intention to murder Findlay. Counsel for the appellant on cross also made reference to the first batch of Downey's notes in which he indicated to Downey that "the only notes in which there's any indication that Mr. Fleet, according to your evidence, ever intended to do anything to Mr. Findlay was in your original group of notes, the ones that you showed the police on February ... when you first met the police and the Crown? ... ".
On redirect, Crown counsel asked Downey to read from notes made in the first batch about Fleet's intention to murder. Mr. Beveridge objected. The trial judge permitted Downey to look at the first batch. After refreshing his memory Downey read that Fleet said that "when he was a kid he just (sic) to get away with murder and now I'm gonna get away with murder".
The general rule is well established that re-examination must be confined to matters arising afresh from cross-examination and cannot be used to introduce new facts. The issue is whether the cross-examination permitted any re-direct on the first batch of notes.
It was within the trial judge's discretion to permit the redirect examination. The trial judge found that defence counsel on cross-examination had indicated a recollection of something being said in the first batch of notes and that both batches of notes had been put to Downey by defence counsel. He noted counsel's objection but allowed Downey to look at the first batch of notes. In my opinion the decision of the trial judge should not be disturbed. Either way the issue is not one that alone, or with other issues, is of sufficient substance to cause a new trial to be ordered.
The second issue under this head is the contention of the appellant that the Crown was permitted to adduce evidence suggesting Fleet had a bad character and thus it had the prospect of prejudicing him in the minds of the jurors. Fleet did not give evidence at the trial. Mr. Beveridge cites a number of examples. These include a reference by Downey that when Fleet gets out, he will destroy a bush or tree that has been planted in Findlay's memory and evidence of Paul Lively, that while he and Fleet were inmates at the Halifax Correctional Centre they talked "about fights and stuff like that that we were both into".
The submission of the appellant is that the trial judge favoured the Crown over the defence. He refused to permit the defence to adduce evidence relating to the character of Donald Findlay. However, a search of the record reveals that in the course of the evidence, some witnesses referred to Findlay as a fighter, and a very good one who could take on two or more at one time. There were other passing references to Findlay that indicated he had his share of scrapes and altercations along the road of life.
I am unable to find in the record anything that was said to indicate Fleet had a propensity to commit crimes similar to that with which he was charged. The jury knew both Fleet and Findlay were in jail. They knew the reason Findlay was there. They did not know the reason Fleet was there nor did they need to know.
The trial judge instructed the jury they could not use the evidence of a previous criminal record to conclude Fleet is the kind of person who would be disposed to commit the offence with which he was charged. He said:
The accused in these proceedings is being tried upon an indictment alleging first degree murder. He is being tried for that offence and that offence only. There was some mention made in some of the evidence of witnesses of a possible previous criminal record of the accused or conviction of other offences. In addition, the evidence indicates that the accused was an inmate in a correctional centre at the time the offence was committed, and you may infer that he was there because he was convicted of a criminal offence.
As I stated previously, he is not on trial for his past and I direct you that you must not, I repeat, you must not infer from the fact or extent of any previous apparent criminal activity that he is or is more likely to be the kind of person who would be disposed to commit the offence with which he is presently charged. Our law simply does not allow you to follow such a chain of reasoning.
You must not use any reference to prior convictions as evidence that Mr. Fleet committed the crime for which he is now charged. You must not conclude that because Mr. Fleet may have been convicted of other crimes, he is disposed to or has a propensity to commit further crimes.
The trial judge left the matter there. He did not venture into more elaborate instructions concerning the points that are now raised by the appellant. On this issue I agree with the respondent that had the trial judge gone further, he may have created a problem rather than solving one. I find no error.
Conclusion
In R. v. Cooper (1993), 78 C.C.C. (3d) 289, Mr. Justice Cory wrote at p. 301:
... At the end of the day, the question must be whether an appellate court is satisfied that the jurors would adequately understand the issues involved, the law relating to the charge the accused is facing, and the evidence they should consider in resolving the issues. ...
After applying the direction of the Supreme Court of Canada in Yebes v. R. (1987), 36 C.C.C. (3d) 417, and the decisions of the court that follow it, I am satisfied that the jury was properly instructed and rendered a verdict for which there was adequate evidence in support.
I would dismiss the appeal on all its grounds.
Clarke, C.J.N.S.
Concurred in:
Hart, J.A.
Jones, J.A.