Court of Appeal

Nova Scotia Court of Appeal

Citation: R. v. Greenwood, 2014 NSCA 80

Date:  20140908

Docket:  CAC 393985

Registry:  Halifax

Between:                                 Leslie Douglas Greenwood

 

Appellant

v.

                                                Her Majesty the Queen

Respondent

 

Judges:	Fichaud, Farrar and Bryson, JJ.A.
Appeal Heard:	May 21, 2014
Held:	Appeal allowed and new trial ordered, per reasons for judgment of Fichaud, J.A.;  Farrar and Bryson, JJ.A. concurring
Counsel:	Ian R. Smith and Arghavan Gerami for the appellant  Jennifer A. MacLellan for the respondent

 

 

 

 

Reasons for Judgment:

[1]             Mr. Greenwood appeals his convictions on two counts of first degree murder.

[2]             Kirk Mersereau and Nancy Christensen were murdered in their home.  The Crown’s key witness was  Michael Lawrence. Lawrence testified that Greenwood shot the victims first with a .357 Magnum, then Lawrence shot them again with a .32 handgun.  Greenwood’s statement, denying that he shot anyone, was in evidence before the jury. Greenwood said he was there to pick up drugs, knew nothing of any killings, had no gun, and Lawrence acted on his own while Greenwood was outside the house with the drugs. The judge warned the jury that  Lawrence was “the ultimate unsavoury character” and advised the jury to look for other evidence that confirmed Lawrence’s account. The jury convicted Greenwood of  both murders.

[3]             This appeal focusses on whether the judge erred in law (1) with the adequacy of of his Vetrovec caution that signalled to the jury the importance of confirmatory evidence, and (2) by his admission of, and failure to properly qualify two critical items of evidence that, in Greenwood’s submission, impermissibly allowed the jury to confirm Lawrence’s testimony and downgrade Greenwood’s credibility.

                                                          1. The Trial

[4]             Greenwood was tried on two counts of first degree murder for the deaths of Kirk Mersereau and Nancy Christensen. They were killed, execution style, on September 9, 2000. The trial was heard by a jury in the Supreme Court of Nova Scotia over fifteen days in April and May, 2012. Eighteen witnesses testified. Chief Justice Kennedy presided. The jury deliberated for two days. On May 9, 2012, the jury returned with verdicts of guilty on both counts of first degree murder.

[5]             Also on May 9, 2012, the Chief Justice sentenced Greenwood to life imprisonment without eligibility for parole for 25 years.          

                                                  

                                           2. Lawrence’s Testimony

[6]             In September 2000, Michael Lawrence was 26 years old. He testified that he was “a terrible drug addict”, “[a]ll I could think about was getting drugs”, and he “worked just simply to get money to get drugs”. He agreed that, from 1993 to 2010, his “drug of choice” was crack cocaine. But he also smoked hash regularly, and felt that his use of LSD, over 100 times, was “ruining [his] brain”.

[7]             He agreed that drug use has affected his mind and reduced his memory of events occurring in September 2000 to ten percent, though later in his testimony he elevated this to twenty-five percent.

[8]             He testified that his “mental health problems … got bad”,  meaning “[i]t went from laughing out loud to just hearing voices all the time and a lot of trouble like that”. He said:

Q. And it’s a very bossy voice, isn’t it, sir?

A. Yes, it is.

Q Yeah. And that voice, sir, going on all the time and you’re there talking to someone, that would interfere with your comprehension?

A. Yes.

                                                           …

Q. In September of 2000, you’re having a hard time knowing what people are saying to you because you’ve got this voice right there in your head interfering with your comprehension. Correct?

A. Yes. That’s correct.

 

[9]             Lawrence said that he has been schizophrenic since 1998 or 1999 but was undiagnosed until 2004, was diagnosed with obsessive compulsive disorder in 2009 but was symptomatic in 2000, and was hallucinatory. He said his schizophrenia stemmed from smoking crack baked in ammonia. He agreed that he had what in some circles is termed a “wet brain” and that, in 2000, he was “[j]ust a zombie”. He agreed that his “drug-induced severe schizophrenia” was aggravated by drug use and that during the critical weekend of Saturday, September 9, 2000, he used “lots of drugs”, was “snorting weed, snorting coke”, and was “pretty well stoned the whole time”. Later he revised his testimony to say that on that weekend he had not used cocaine, but instead was “going through withdrawal” from cocaine.

[10]        Lawrence had a criminal history from 1990 to 2012, including drug offences, robbery, use of a firearm, and three first degree murders that I will describe.

[11]        While incarcerated in the 1990s, he sold drugs in the prison. Mr. Curtis Lynds supplied him with the drugs. Curtis Lynds was a criminal acolyte of his uncle, Jeff Lynds, who had connections to the Hell’s Angels. After Lawrence was released from prison, he sold drugs for Lynds on the street. Lawrence testified “it was a good way to  make money to support my habit”.

[12]        In September 2000, Lawrence owed Curtis Lynds a drug debt of $28,500. Lawrence testified: “I could have been killed if it didn’t get paid”. He was desperate to repay Lynds, and said he “didn’t give a damn who was going to die”.

[13]        Initially, Lawrence devised what he described as a plan to “rob the Brinks guard coming out of the Atlantic Superstore on Lacewood Drive with a bag of money”. But he needed a gun and a vehicle.

[14]        On Wednesday, September 6, 2000, he met Curtis Lynds to discuss the plan.  Also present were Jason Lindsay and Jonathan Burgoyne. Lynds agreed to provide the gun. According to Lawrence, Lynds told him that “the best way to get a car was to go out, hitchhiking on the highway and when someone stopped to pick me up, kill the person and take the vehicle”. Lawrence “thought it was a good idea”.

[15]        On September 7, 2000, Lawrence, Curtis Lynds and Lindsay met at Curtis Lynds’ home. Lawrence testified they discussed the plans for the robbery and murder.  Lawrence spent the night at Lynds’ home.

[16]        On  Friday, September 8, Curtis Lynds went into his grandmother’s shed and came out with a .357 Magnum Snub Nose Revolver.  Lynds loaded it and gave it to Lawrence.  Then Lindsay drove Lawrence to the Brookfield exit on Highway 102, and dropped him off. It was around 7 a.m.

[17]        Lawrence hitchhiked. The first car to stop was driven by Mr. Charles Maddison. The two had never met. Lawrence testified “we talked a little bit” and Maddison “told me he was going to see a doctor about his back in Halifax”. Then Lawrence pulled out the .357, and told Maddison to drive to Panuke Road in Hants County “because there was a wooded area where I could do the business”. The drive took an hour, with the gun pointed at Maddison. Not much was said. According to Lawrence, Maddison “was afraid. I would have been, too. I mean just human.” They reached the Panuke Road and got out. Lawrence testified: “we walked into the woods and I shot and I killed him.”  He shot him in the chest first, then the head.  The head shot was “[t]o kill him, make sure he died, you know”.  He left the body in the woods, “didn’t cover him over with brush or nothing”, then “went back out to the truck and got in it and drove away”.

[18]        Lawrence returned to Halifax for the robbery. But he arrived at the Superstore too late. The Brinks truck was leaving. So he decided to rob Brinks the next day.

[19]        The next day was Saturday, September 9. In the morning there was a change of plan. Curtis Lynds and Lindsay picked up Lawrence in Lindsay’s car. Lawrence testified Lynds told him that, instead of robbing Brinks, “I was going to kill some people for him”. That would redeem Lawrence’s drug debt.

[20]        Still on September 9, Curtis Lynds and Lindsay drove in Lindsay’s car to the Kennetcook area. Lawrence followed in Maddison’s truck. Maddison’s truck was  parked at a clearing in the woods. Then, in Lindsay’s car, Lawrence, Lynds and Lindsay drove past Mr. Kirk Mersereau’s home. Lynds showed Lawrence where Mersereau lived. That was when Lynds told Lawrence Mersereau’s name. Lawrence had never heard of him. Lynds told Lawrence that Mersereau “was a gangster” who “had to be killed”, and the killing “was for Jeff”. Jeff was Curtis Lynds’ uncle, Jeff Lynds. Lawrence knew that Curtis Lynds got his drugs from Jeff Lynds, and he assumed the killing was drug related. Lawrence testified that, at this time, he was thinking “I would just kill the person and then my bill would be paid”, and “I knew I would have the gun and I’d shoot him to death”.  Curtis Lynds told Lawrence that after the killing, Lawrence should throw the gun off the Kennetcook Bridge and burn Maddison’s truck. They left Maddison’s truck in a clearing near Mersereau’s home and returned to Curtis Lynds’ home in Lindsay’s vehicle.

[21]        On the return, Lindsay driving, they approached an R.C.M.P. checkpoint. Lynds quickly turned his Hells Angels muscle shirt inside out.  The R.C.M.P. officer stopped and searched the vehicle. Lawrence and the officer knew each other from an earlier arrest. The search didn’t locate the .357 Magnum that was under the back seat.  But Lindsay was ticketed for driving without a license. Lawrence drove Lindsay’s car away from the roadblock.

[22]        They arrived back at Curtis Lynds’ home in the late afternoon of Saturday, September 9. At Lynds’ direction, Lawrence hid the .357 in the woods.

[23]        Lawrence said that Curtis Lynds left, then returned with a .32 calibre gun, Luger style. Lynds loaded it, clip in the handle.

[24]        To this moment, the chronology of events to September 9, 2000 draws on the testimony of Lawrence, which did not mention Greenwood.

[25]        According to Lawrence, at this moment, on the afternoon of September 9,   “Leslie Greenwood showed up and that’s when we met each other”.

[26]        Lawrence testified that Curtis Lynds

A. Just told me this was Les Greenwood and he was going to help me do it. He said that Les Greenwood knew them and that Kirk Mersereau trusted him and that Les would go in first and shoot them and then I would come behind and shoot them in the heads from very close to make sure that they died.

Q. So …

A. And he said that Nancy was going to be killed, also.

Nancy was Nancy Christensen, Mersereau’s common law wife. Lawrence continued:

Q. And what is Les saying?

A. He would do it.

Q. Mr. Greenwood. And other than saying, I will do it, does Mr. Greenwood say anything else?

A. He wanted to know if I would make sure they were dead. He was quite concerned.

Q. Okay. And what did you say?

A. I told him I would.

Lawrence testified that Curtis Lynds’ instructions included:

Curtis said that the .357 was the heavier-powered gun and that Les would use it to knock them down with because he was sure if they were hit with that, they wouldn’t be getting up and going anywhere. And then I would come out with the lighter-powered gun and finish them off with shots to the head.

According to Lawrence, Greenwood was involved because Mersereau knew Greenwood, and would allow Greenwood entry to his home.

[27]        As to Jason Lindsay’s whereabouts at this time,  Lawrence testified:

Q.  And where was Jason Lindsay?

A.  He was still in the yard, I think so, or in the house or some … he was still there. I know that much.

Q.  Okay. Was he part of the conversation?

A.  No.

[28]        Lawrence said that at 6:00 or 6:30 p.m. on September 9, he and Greenwood left Curtis Lynds’ house in Greenwood’s car, picked up a jug of gasoline to burn Maddison’s truck, and drove to Maddison’s truck that had been parked in the clearing. They arrived between 7:00 and 7:30 p.m. Greenwood drove the truck to Mersereau’s house. Lawrence said they “each had a weapon on our person”,  Greenwood with the .357 and Lawrence with the .32.  He said it took them a half- hour to reach the vicinity of Mersereau’s home.

[29]        Lawrence testified that after they parked near Mersereau’s house, Lawrence stayed on the floor of the car to avoid being seen, and Greenwood went to the house with the .357 Magnum.  Lawrence continued:

Q. Did you hear any sounds that gave you any indication about what was going on?

A. I heard nothing until I heard the gunshots.

                                                             …

Q. Oh, sure. How long did you stay on the floor?

A. Probably five minutes.

Q. Okay. And what caused you to not be on the floor anymore?

A. When I heard the gunshots.

Q. Okay.

A. I got out to  come in the house to help.

Q. Okay. Tell me about that.

A. Okay. I heard the gunshots and I got up and I opened the door of the truck and got out. And by the time I did that, I met Les. He was coming out. I saw him come out of the house and come down the stairs. He was quite panicked. He was hollering, Help. They’re in there. Go get them. They’re in there. I shot them. They’re in there. Go kill them. Make sure they’re dead.

[30]        Lawrence testified that as he approached the house, he was beset by a dog. He fired the .32 twice and shot the dog, then entered the house. He observed Mersereau and Christensen:

As far as I know, they were shot at point blank. They looked like they were dead. They appeared to be dead. They weren’t hollering for help or screaming or kicking or jumping around or breathing. They didn’t seem to be doing nothing. It seemed like they were dead.

Then:

 I came up very close to Kirk Mersereau and I shot him in the head two times and then I shot Nancy Christensen in the head once and then I shot Kirk Mersereau in the head again. And I was going to shoot Nancy again but the gun was empty. All the shots were fired.

[31]        Lawrence testified that he threw the guns off the Kennetcook River Bridge, and drove Maddison’s truck back to the clearing. They changed their clothes, put the old clothes in Maddison’s truck, doused the truck in gasoline and burned it. Then they left in Greenwood’s car. It was about 9 p.m. on Saturday, September 9.

[32]        Lawrence testified that the next morning, Sunday, September 10, he and Greenwood  drove to Curtis Lynds’ house. Lawrence reported to Curtis Lynds:  “The job was all done. They both were dead. Kirk and Nancy were both dead.”

[33]        Lawrence testified that on Wednesday September 13, he went back to the Panuke Road area, where Maddison’s body had been left, and buried the body. Greenwood wasn’t involved.  Later, when Lawrence was arrested, he said that a Neil Burns had helped Lawrence bury Maddison’s body. At Greenwood’s trial, Lawrence testified that Joe Leopold helped him bury the body. Lawrence testified:

Q. Now did you ever have occasion to suggest that someone else had helped you?

A. Yes, I did.

Q. Okay. Can you tell me about that?

A. When I was arrested, I told the police that Neil Burns helped me make him disappear.

Q. Okay.

A. I lied to them, to Bruce Briers.

Q. Who is Neil Burns?

A. He was a friend of mine when I was a drug dealer. He was a drug addict, too, and stuff. He caused a lot of trouble to me over … over owing me money.

                                                                …

Q. And who was Bruce Briers?

A. Sergeant of the RCMP.

[34]        On January 10, 2012, Lawrence pleaded guilty to three counts of first degree murder in the deaths of  Charles Maddison, Kirk Mersereau and Nancy Christensen. He is serving a life sentence.

                                                3. Greenwood’s Statement

[35]        Mr. Greenwood did not testify.

[36]        The Crown introduced into evidence a videotape of Greenwood’s interrogation by the police, conducted day-long on December 9, 2010. The transcript is 442 pages. To synopsize:

-         Greenwood repeatedly denied shooting Mersereau and Christensen. 

-         Greenwood said that he was asked by Jeff Lynds to drive to Mersereau’s home to pick up some hash and tobacco, as he had done for Jeff Lynds on prior occasions, and he knew nothing of a plan to kill anyone.  

-         Greenwood said Jeff Lynds told him that Lawrence would accompany him for the pick-up.

-         Greenwood said they drove to Mersereau’s home, then Greenwood and Lawrence went into the house, Greenwood  picked up the hash and tobacco from Mersereau, Greenwood then went outside, and Lawrence remained inside chatting with Mersereau.

-         Greenwood said that, while he was outside and walking back to the truck, he heard shots from inside the home and, at that point, Greenwood didn’t know who fired the shots. He thought Mersereau might have fired them.

-         Then Lawrence rushed out, threw a gun onto the seat of the car, and told Greenwood to drive to the bridge.  Lawrence said to Greenwood “Ask me no questions, I’ll tell you no lies”.

-         At the bridge, Lawrence threw the gun over the bridge into the river. Lawrence told Greenwood to throw a gun box off the bridge, which Greenwood did.

-         Greenwood said he was dropped off at his girlfriend’s house. He wasn’t involved with burning the truck.

-         Greenwood said he never had a gun, and knew nothing of a second gun. 

-         Greenwood said that he did not go to Curtis Lynds’ home on September 10.

[37]        To quote extracts from Greenwood’s unedited transcript:

LG:  Yeah, no he asked me, would you mind going with Mike, go down to Kirk, and you know, get all the hash and everything else like that, right, just to, so …

U/C:  So it was not to pop them?

LG:  I was just suppose to go down there with him, like I was suppose to get hash and then there was suppose to be some weed, like I’m trying to remember that for sure

                                                                 …

LG:  So the only thing I was going to do when we got, we got, go over there, grab her car, go into the city, drop this off, so be it right? And the thing is like, so, (inaudible) went right that fuck, went in, got everything, and everything else like that, I was headed back to the truck, bang, bang

U/C:  You want?

LG.:  Bang, bang

U/C:  So, were where you when that happened?

LG.:  Where was I?

U/C:  Yeah

LG:  Off the front doorstep, walking towards the vehicle, like I had, like I had, I had like, the garbage bag full of weed, (inaudible) and hash, like you know what I mean is like, I’m on my way out the door with it right, and that happens, oh

U/C  (Inaudible) shouldn’t be there?

LG.:  No, oh no, threw stuff in the back of the truck, Mike comes running out, gun, throw them out, Mike (inaudible) drove up, well I’m going to take you where he threw that off

U/C Is that the bridge close to the house there?

LG  Yeah that’s where he threw it off and …

U/C  What did he throw in there exactly?

LG  The gun

                                                                       …

LG:  You’re talking about Mister Maddison

FF:  Yeah, you’re right, yeah

LG:  I didn’t know a thing about that man

                                                                        …

LG:  I was just there for the pot, and tobacco

FF:  You were just there for the pot and tobacco. But how did you know that the pot and tobacco were going to be there?

LG:  Cause that’s where it always is

FF:  He always had a big supply?

LG:  Yeah

                                                                      …

 FF:  Well what about the, what about the chunk the gun? What did you do with that?

LG:  I didn’t have one

                                                                    …

FF:  And where did you stay that ah, where, where did you drop ah, Mike off?

LG:  Oh he dropped me off

FF:  He dropped you off, and then what did you do?

LG:  Dropped me off at the girlfriends place, and, it, it’s all in a file out there

                                                            …

DM:  You were there when the truck got burnt, that was it?

LG:  No

 

                                                     …

LG:  I went down and got my dope and my cigarettes, and he popped the fuckers, what am I supposed to do Darrell?

                                                        …

DM:  Were you there when the truck got torched?

LG:  No

                                                    …

LG:  What I’m saying to you, is this, I never seen any guns, till afterwards, and I only seen one

DM:  Did you shoot Kirk or Nancy?

LG:  No, no I did not, you ask me, sort of as a friend

DM:  So who did?

LG:  I told them, and they knew

DM:  Who was it?

LG:  It was already a (inaudible) Mike was the only one left in the house

DM:  And you were doing what when the shooting was going on?

LG:  I was walking out the door with the dope and the smokes

DM:  So, walking out the door, well you must have turned around and looked, cause you must have been thinking, well are these fucking shots coming at me.

LG:  I wasn’t thinking, I was already out, I was just off the doorstep and shit, and what do you think was going through my mind? Everything, ok, I’m not asking you to answer it, what is it, what the hell I wanted to do, what do you think?

DM:  Get the fuck out of there

LG:  Fucking right. And I did

                                                          …

LG:  I seen Mike, I didn’t even see him have the gun til after he was throwing it over, like I didn’t see it prior to it, know nothing Darrell. I was there to get, like he had pot and shit, and tobacco, everything that I was moving, like I (Inaudible) so much of a hard time, then I went over and spotted it, like, I, like, I,

                                                            …

LG:  I didn’t shoot anybody so, what ever way you want to put it

                                                            …

DM:  So I come in, and bottom line is, if there is evidence of two guns Les, then there’s two guns

LG:  I didn’t have one, I didn’t have one. They can go on all they want

DM:  So where did the other gun go

LG:  Maybe Mike had two, but I only ever seen one, when he threw it over

DM:  You didn’t pull the trigger on neither one of them

LG:  No, I’m not a trigger man

                                                            …

LG:  Two guns, I never knew about that till last week. That’s why I am stunned. I don’t know what your talking about man, straight up. And like we can argue for days about that, I ain’t going to change Darrell.

                                                              …

LG:  Maybe he had two on him, I don’t look, I didn’t even see him pull the trigger

                                                              …

LG:  Yeah, but whatever you insist. I told you I didn’t do it

                                                              …

FF:  So you showing up at Curtis, the next day, with Mike, that’s, that’s not possible?

LG:  That’s impossible

FF:  That’s impossible, ok

LG:  Cause I didn’t show up at Curtis’s with Mike

FF: No?

LG:  No sir

 

                                              4. Other Witnesses

[38]         Jeff Lynds did not testify. He was dead by the time of Greenwood’s trial. A recorded statement by Jeff Lynds was played during Greenwood’s police interrogation. Later (paras. 120 ff) I will discuss the use of Jeff Lynds’ statement. The Crown acknowledges that Jeff Lynds’ statement was inadmissible for the truth of its contents.

[39]        Curtis Lynds did not testify. Neither did Jonathan Burgoyne, who was with Lawrence, Lindsay and Curtis Lynds on September 6, 2000.

[40]        Jason Lindsay took the witness stand. He was in witness protection and became the subject of a Vetrovec warning in the Chief Justice’s jury charge.  Lindsay said that on Saturday, September 9, 2000, he drove Curtis Lynds and Lawrence to Kennetcook.  This would correspond with Lawrence’s first Saturday drive to Kennetcook (above paras 20-21). Curtis Lynds told Lindsay where to drive. Lindsay heard Curtis Lynds say to Lawrence: “Peoples going to be killed here.” On the way back, after the R.C.M.P. road stop, they returned to Curtis Lynds’ home. Then Lindsay went elsewhere, returned later Saturday evening, spent Saturday night at Curtis Lynds’ home, and was there Sunday morning. Lindsay’s testimony through the events of Saturday, September 9, does not mention Greenwood.

[41]        Lindsay first mentions Greenwood in his account of Sunday morning, September 10. On the Crown’s direct examination, Lindsay testified:

Q.  So on Sunday, September 10^th of 2000, were you at Curtis’s house …

A.  Yeah.

Q.  … still?

A.  Yeah.

Q.  And what, if anything, happened on that day?

A.  I recall seeing Les and Mike come up the driveway in an old brown, I think it was like a Skylark or a smaller car.

Q.  So when you … when you say “Les”, which Les are you referring to?

A.  Greenwood.

Q.  And Mike?

A.  Lawrence.

                                                             …

Q.  So what else did you notice that morning?

A.  He was pretty pale looking when he got out.

Q.  Who was pale looking?

A.  Les.

Q.  And what happened next?

A.  They … Curtis … they were outside by the front deck of Curtis’s house and Curtis confronted Mike and asked him if he did that? And Mike said, Yeah, I got them both.

Q.  And what did Curtis say?

A.  Curtis, after that, he was just standing there.

Q.  And what … what else …

A.  Curtis asked Mike if he did that and that’s what Mike said, Yeah, I got them both.

Q.  And so …

A. And Les never said a word, he was just standing right beside Curtis, like the three of them were (there?)

Q.  So you described us Les as looking what?

A.  Pale.

Q.  And any other way you could describe him?

A.  It was like he’d seen something he shouldn’t have.

[42]        Lindsay’s cross-examination includes:

Q.  And you guys take a drive on Saturday?

A.  Yes.

Q.  Right. And you got … you pick up Curtis Lynds and Mike Lawrence, right?

A.  Yeah.

Q.  Les Greenwood is not there at all for that whole drive, was he, sir?

A.  No, he wasn’t.

Q.  And you never once heard Les Greenwood’s name mentioned that whole time you were in your vehicle with them, did you, sir?

A.  No, I never.

                                                     …

Q.  Then we get to Sunday, Sunday morning. And you say Les and Mike Lawrence show up, correct?

A.  At Curtis’s.

Q.  At Curtis’s house.

A.  Yes.

Q.  And Curtis Lynds asked Mike Lawrence if he did it, correct?

A.  Yes.

Q.  And you indicated Mike said, Yeah, I got them both. Correct?

A.  Yes.

Q.  He didn’t say, We got them both. Did he?

A.  I never heard him say, We got them both.

Q.  Right.

A.  He said, I got them both.

Q.  And Les Greenwood never said a word, did he, sir?

A.  No, he didn’t.

[43]          The Crown submitted an affidavit by Lawrence’s lawyer, Brian Bailey, and Mr. Bailey testified.  The use of Mr. Bailey’s evidence is in dispute on the appeal. I will address that topic later (paras 80 ff).

[44]        Several witnesses who were in the vicinity of Mersereau’s home on the day of the murders testified about seeing the Maddison truck, hearing shots and discovering the bodies. Mr. Ronald Connors, a neighbour, testified that he heard a volley of six shots, then three or four more. None of these witnesses spoke to whether the trigger man was Greenwood, Lawrence or both.

[45]        Other Crown witnesses included police officers and experts. Forensic evidence confirmed that two guns had been used, a .32 calibre and a .357 Magnum. Dr. Vernon Bowes testified that Kirk Mersereau was shot eight times. His causes of death were a high velocity projectile wound to the head and several high velocity projectile wounds to the body.  Nancy Christensen died of a high velocity projectile wound to the head from a .357 Magnum. Her head was grazed by a .32 calibre bullet.

[46]        The Defence called no evidence.

                                                    5. Issues on Appeal

[47]        Mr. Greenwood appeals his convictions. His four grounds, that I have re-ordered from his factum, are:

(1) The Chief Justice erred in law by delivering a jury charge with a recitation of evidence that was unbalanced to Greenwood’s detriment.

(2) The Chief Justice erred in law by providing an inadequate Vetrovec warning respecting Lawrence.

(3) The Chief Justice erred in law by admitting the affidavit and viva voce testimony of Brian Bailey, and by providing no limiting instruction to the jury respecting Bailey’s evidence.

(4) The Chief Justice erred in law by permitting the jury to hear Jeff Lynds’ statements during the recorded police interrogation of  Greenwood, and by providing confusing instructions to the jury on the use of Lynds’ statements.

[48]        Greenwood says that each error resulted in a miscarriage of justice.

[49]        Greenwood’s grounds of appeal invoke the Court of Appeal’s powers to allow an appeal against conviction for error of law and miscarriage of justice under ss. 686(1)(a)(ii) and (iii) of the Criminal Code. No ground of appeal suggests an unreasonable verdict under s. 686(1)(a)(i).

[50]        The Crown says that, if the judge erred, then there was no substantial wrong or miscarriage of justice, and the Court should dismiss the appeal under s. 686(1)(b)(iii) of the Criminal Code.

[51]        I will discuss this Court’s standards of review as I address each issue.

                                6. First Issue - Unfair  Recitation of Evidence

[52]        Later I will discuss specifically the Chief Justice’s Vetrovec warning, his treatment of Mr. Bailey’s evidence, and his treatment of  Jeff Lynds’ statement that was embedded in Greenwood’s police interrogation. My comments under this heading do not invilve to those topics.

[53]        Mr. Greenwood submits that the Chief Justice’s jury charge included uneven references to the evidence, omitted evidence that supported Greenwood and failed to properly instruct on the exculpatory aspects of Greenwood’s statement. Greenwood’s factum lists a number of evidential items that he says the Chief Justice should have highlighted for the jury.

[54]        In R. v. Daley, [2007] 3 S.C.R. 523, para. 29, Justice Bastarache for the majority listed eight topics that should be covered by a typical jury charge, including an explanation of the theories of each side, a review of the salient facts to support each theory, and a review of the evidence that relates to the legal principles. Justice Bastarache portrayed the appellate perspective:

30  When considering the adequacy of a trial judge’s charge on these elements, it is important for appellate courts to keep in mind the following. The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind of the jury that matters, and not whether a particular formula was recited by the judge. The particular words used, or the sequence followed, is a matter within the discretion of the trial judge and will depend on the particular circumstances of the case.

31  In determining the general sense which the words used have likely conveyed to the jury, the appellate tribunal will consider the charge as a whole. The standard that a trial judge’s instructions are to be held to is not perfection. The accused is entitled to a properly instructed jury, not a perfectly instructed jury: see Jacquard [R. v. Jacquard, [1997] 1 S.C.R. 314], at para. 2. It is the overall effect of the charge that matters.

[55]        Justice Bastarache then elaborated on the trial judge’s responsibility to review the evidence in the jury charge:

54  One of the classic statements describing the trial judge’s duty to review the evidence in the charge to the jury is found in this Court’s decision in Azoulay v. The Queen, [1952] 2 S.C.R. 495, at pp. 497-98, per Taschereau J.:

The rule which has been laid down, and consistently followed is that in a jury trial the presiding judge must, except in rare cases where it would be needless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that they may appreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them. [Justice Bastarache’s underlining]

This statement, however, must be understood in the context of that particular case. There, the trial judge had not reviewed the evidence at all. He simply indicated that both counsel had elaborated on this matter sufficiently. A majority of this Court found the charge inadequate because it left the whole of the evidence for the jury in bulk for evaluation.

55  Azoulay does not stand for the proposition that all facts upon which the defence relies must be reviewed by the judge in the charge [Justice Bastarache’s italics]. Indeed, Taschereau J. qualified the above-quoted statement a few lines later: “The pivotal question upon which the defence stands must be clearly presented to the jury’s mind. Of course, it is not necessary that the trial judge should review all the facts, and that his charge be a minute record of the evidence adduced. …” (p. 498; [Justice Bastarache’s underlining]. Moreover, in later decisions, this Court adopted the reasoning of the Court of Appeal in R. v. Demeter (1975), 25 C.C.C. (2d) 417 (Ont. C.A.), at p. 436; aff’d on other grounds, [1978] 1 S.C.R. 538, to the effect that non-direction on a matter of evidence constitutes a reversible error only where the single item of evidence in question is the foundation of the defence: see Young v. The Queen, [1981] 2 S.C.R. 39, at p. 56 and Theriault v. The Queen, [1981] 1 S.C.R. 336, at p. 344 (per Dickson J.) [Justice Bastarache’s italics]. Trial judges are not required to relate witness testimony that is only peripheral to the main issues in the case: see Theriault, at p. 342.

56  Thus, it is not the case that the trial judges must undertake an exhaustive review of the evidence. Such a review may in some cases serve to confuse a jury as to the central issue. Brevity in the jury charge is desired. …

57  The extent to which the evidence must be reviewed “will depend on each particular case. The test is one of fairness. The accused is entitled to a fair trial and to make full answer and defence. So long as the evidence is put to the jury in a manner that will allow it to fully appreciate the issues and the defence presented, the charge will be adequate”: see Granger, [Granger, Christopher, The Criminal Jury Trial in Canada, 2^nd ed. Scarborough, Ont: Carswell, 1996], at p. 249.The duty of the trial judge was succinctly put by Scott C.J.M. in R. v. Jack (1993), 88 Man. R. (2d) 93 (C.A.), at p. 102; aff’d [1994] 2 S.C.R. 310; “the task of the trial judge is to explain the critical evidence and the law and relate them to the essential issues in plain, understandable language”(para. 39).

58  Finally, it should be recalled that the charge to the jury takes place not in isolation, but in the context of the trial as a whole. Appellate review of the trial judge’s charge will encompass the addresses of counsel as they may fill gaps left in the charge: see Balfour [Der, Balfour Q.H., The Jury – A Handbook of Law and Procedure, Toronto: Butterworths, 1989 (looseleaf)], at p. 14-26. Furthermore, it is expected of counsel that they will assist the trial judge and identify what in their opinion is problematic with the judge’s instructions to the jury. While not decisive, failure of counsel to object is a factor in appellate review. The failure to register a complaint about the aspect of the charge that later becomes the ground of appeal may be indicative of the seriousness of the alleged violation. See Jacquard, at p. 38: “In my opinion, defence counsel’s failure to object to the charge says something about both the overall accuracy of the jury instructions and the seriousness of the alleged misdirections.”

[56]        In my view, the Chief Justice’s jury charge in Greenwood’s trial did not offend those principles.

[57]         The  Crown’s evidence entered through eighteen witnesses. The Defence called no witnesses, but relied on Lawrence’s unreliability and Greenwood’s denial in his statement. So an evidential summary would be expected to allocate more time to the Crown’s witnesses. In such circumstances “[i]t is simply inappropriate to try to measure the fairness of the charge by reference to quantity”: R. v. Thatcher, [1987] 1 S.C.R. 652, para. 86.

[58]        The “foundation of the defence” (Daley, para 55) was twofold – that Greenwood’s statement should be accepted and that Lawrence was an unreliable witness. 

[59]        The Chief Justice set out Greenwood’s version of the events leading to, and  at Mersereau’s home, and Greenwood’s denial of his involvement in the shootings, from Greenwood’s statement. The charge quoted an exculpatory extract from the statement. The Chief Justice gave a W(D) warning for Greenwood’s statement, despite that he had not testified:

If you believe the evidence … the statement to the police of Les Greenwood that he did not commit this offence, if you believe that, then you must find him not guilty, if you believe that. If you do not believe the statement of Les Greenwood, if you do not believe it but it leaves you with a reasonable doubt about his guilt, you must find him not guilty. Even if the evidence does not leave you with a reasonable doubt about his guilt, about the essential elements of the offence, you may convict only if the rest of the evidence that you do accept proves his guilt beyond a reasonable doubt.

[60]        The charge recited the Defence’s position that Lawrence was unreliable,  elaborated with specifics and gave a Vetrovec warning that I will discuss later.

[61]        Following his charge the Chief Justice asked counsel for comment. Counsel for the Crown said “We have nothing, My Lord”. Defence counsel said “Nothing, as well, My Lord”.

[62]        The recitation of evidence summarized the differing versions, and let the jury decide. The charge was not unfair.  I would dismiss this ground of appeal.

                                  7.  Second Issue – Vetrovec Warning

[63]        The Chief Justice’s jury charge characterized Lawrence:

… Mike Lawrence was an interesting witness, interesting. I’ve been on the Bench a long time but I’ve never experienced a witness quite like Mike Lawrence. Not very often, you can imagine, you have somebody come before the Court under oath and say, I killed three people in two days. That’s interesting.

                                                             …

On cross-examination, Mike Lawrence admitted that at the time, September of 2000, he was a heavy drug user, was constantly hearing voices that directed him to kill himself, or “a” voice, was suffering from obsessive compulsive disorder that caused him to count things all the time and he, basically, said there was a lot going on in his head.

Obviously, you’ve heard Mr. Begin [defence counsel] concentrate on things that he said, especially the use of the word “zombie”, that he was a zombie and he  has said that that should be something that you should properly consider in relation to his memory and his testimony before this Court.

                                                              …

You heard Mike Lawrence testify in this matter. He gave evidence that it was important to the prosecution, that’s for sure. …

Now to say that Mike Lawrence is an unsavoury character is a dramatic understatement. Mike Lawrence told you that over the course of two days, he killed three people. Told you as a result of him having done that, he has pleaded guilty to three counts of first degree murder. He’s in a federal institution … He’s committed additional criminal offences. You’ve got a copy of his record. Told you about the story of his development, how he grew up, what his problems were. Told you he was a drug trafficker, that he sold drugs for Curtis Lynds. As indicated, you got a copy of his criminal record. It’s an exhibit in this matter. It’s extensive. Mike Lawrence is the ultimate unsavoury character.

When witnesses of this nature … witnesses of “unsavoury character” testify, I am required to tell you the following. This is the Vetrovec warning, the common sense that … it’s not that it’s not to be taken seriously. It definitely is. But I would suggest to you it’s something you knew before I told you. I’m going to tell you so that I’ll emphasize what you almost certainly already know. This is a special instruction that has to do with testimony of unsavoury characters. It’s an instruction that you must keep in your mind when you are considering how much or how little you will believe or rely on the evidence of an unsavoury character in determining the matter; i.e., Mike Lawrence.

Common sense would tell you that in light of his criminal background, there is good reason to look at Mike Lawrence’s evidence with the greatest care and caution. That said, you are entitled to rely on his evidence even if it is not confirmed or corroborated by another witness or by other evidence. You are entitled to rely on his evidence even if it were not corroborated. You’d be entitled to do that but, and this is Vetrovec, it would be risky to convict on the uncorroborated, unconfirmed evidence of an unsavoury witness. Therefore, you should look for some confirmation of Mike Lawrence’s testimony from other sources, from someone or something other than Mike Lawrence before you rely on his evidence in deciding ultimately the guilt or non guilt of Les Greenwood.

You may believe Mike Lawrence’s testimony if you find it trustworthy. Even if you were to find that no one else or nothing else in this case confirmed it, you could believe it and you could find it trustworthy. That’s correct. But it’s also common sense that you should be looking for corroboration, confirmation from other sources.

[64]        The Chief Justice cited examples of possible confirmatory evidence:

Jason Lindsay testified. …

He [i.e. Lindsay] says, further, that he was at Curtis Lynds’ property on the Sunday morning, would be the morning after when Mike and Les arrive together. So he says three things that seem to corroborate Mike Lawrence’s testimony; one, that the truck was left in the clearing earlier in the day; two, that there was a drive-by so that Mike Lawrence could be shown where Kirk Mersereau lived, and; three, that Les Greenwood and Mike Lawrence arrive together at Curtis Lynds’ on a Sunday morning. …

[65]        Greenwood submits that the warning was deficient because it did not caution the jury that Lawrence’s drug addiction and mental health impaired his reliability, did not highlight the weapons offences in Lawrence’s criminal record, and did not specify the particular risks from an accomplice’s testimony. He says that the judge failed to instruct the jury that confirmatory evidence must relate to the material fact in dispute – i.e.whether Greenwood pulled the trigger.

[66]        In a series of decisions, the Supreme Court has outlined the principles that govern appellate review of  Vetrovec warnings. Following R. v. Vetrovec, [1982] 1 S.C.R. 811, these include R. v. Brooks, [2000] 1 S.C.R. 237, R. v. Kehler, [2004] 1 S.C.R. 328,  R. v. Khela, [2009] 1 S.C.R. 104, R. v. Smith, [2009] 1 S.C.R. 146 and R. v. Hurley, [2010] 1 S.C.R. 637.  

[67]        Justice Fish’s reasons in Khela contain the fullest exposition of  the appeal court’s role in the application of the principles. I will list the principles from Khela that are apposite to Greenwood’s appeal.

[68]        The rationale is to minimize the risk of conviction based purely on the testimony of an untrustworthy witness. In Khela, Justice Fish elaborated:

1     Legal systems far separated in time and place have long recognized that it is dangerous to rest a criminal conviction on the testimony of a single witness, or on a single piece of evidence. This concern is at least as old as Deuteronomy. It arises because witnesses can lie deliberately or mislead inadvertently, documents can be forged, and other items of evidence can be tampered with or planted: P. Roberts and A. Zuckerman, Criminal Evidence (2004), at p. 466.

2     The evidence of a single witness is nonetheless sufficient in Canada to support a conviction for any offence other than treason, perjury or procuring a feigned marriage. Many serious crimes might otherwise go unpunished. But where the guilt of the accused is made to rest exclusively or substantially on the testimony of a single witness of doubtful credit or veracity, the danger of a wrongful conviction is particularly acute.

3     It is therefore of the utmost importance, in a trial by judge and jury, for the jury to understand when and why it is unsafe to find an accused guilty on the unsupported evidence of witnesses who are "unsavoury", "untrustworthy", "unreliable", or "tainted". For present purposes, I use these terms interchangeably. And I mean to include all witnesses who, because of their amoral character, criminal lifestyle, past dishonesty or interest in the outcome of the trial, cannot be trusted to tell the truth -- even when they have expressly undertaken by oath or affirmation to do so. [Justice Fish’s italics]

…

11     The central purpose of a Vetrovec warning is to alert the jury to the danger of relying on the unsupported evidence of unsavoury witnesses and to explain the reasons for special scrutiny of their testimony. In appropriate cases, the trial judge should also draw the attention of the jurors to evidence capable of confirming or supporting the material parts of the otherwise untrustworthy evidence.

[69]        The appeal court should focus on substance over form. The crafting of the caution is in the trial judge’s discretion, without prescribed wording. Appellate intervention is warranted only if the warning offended a basic requirement of the principled framework. Justice Fish explained:

6     In Vetrovec, the Court held that no particular category of witness requires this warning. And the Court held as well that the caution, where it is found to be necessary or appropriate, need not be framed in technical or formulaic language. Nor must the judge include in the caution any legal definition of "corroboration" in explaining to the jury the type of evidence that is capable of supporting the testimony of the tainted witness.

…

13     The crafting of a caution appropriate to the circumstances of the case is best left to the judge who has conducted the trial. No particular set of words is mandatory. In evaluating its adequacy, appellate courts will focus on the content of the instruction and not on its form. Intervention on appeal will not be warranted unless a cautionary instruction should have been given but was not, or the cautionary instruction that was given failed to serve its intended purpose.

14     No single formula can be expected to produce an appropriate instruction for every foreseeable -- let alone unforeseeable -- situation at trial. That is why we vest in trial judges the discretion they must have in fashioning cautionary instructions responsive to the circumstances of the case. Trial judges nonetheless seek, and are entitled to expect, guidance from this Court as to the general characteristics of a sufficient warning. I shall later outline in broad brushstrokes a proposed template which, while not at all mandatory, will in my view be of assistance to trial judges without unduly fettering their discretion, and will reduce the number of appeals attributable to the present uncertainty regarding the governing principles. [Justice Fish’s italics]

 

…

27     At issue before this Court is the amount of deference that trial judges must be shown in crafting the form and content of Vetrovec warnings. Counsel for the appellant Khela submits that trial judges are entitled to little discretion and urges the Court to instead adopt a mandatory formula. He contends that once a trial judge has exercised his or her discretion to give the caution, its content must necessarily include certain elements. Counsel for Sahota does not advocate the creation of a model charge but argues that in the context of this case, the trial judge's failure to instruct the jury on the issue of collusion and on the materiality requirement of confirmatory evidence was fatal.

28     The Crown, on the other hand, submits that a jury's ability to evaluate the credibility of witnesses need not be "micro-managed" by complex, mandated instructions. Appellate courts, says the Crown, should adopt a "functional approach" whereby they only intervene when reviewing Vetrovec cautions if the warning has failed to serve its intended purpose to alert the jury to the danger of accepting, without more, the evidence of unsavoury witnesses.

29     In my view, the appropriate approach to evaluating a Vetrovec caution lies somewhere between these opposing positions and requires us to "entrust trial judges with the flexibility of tailoring their directions to the facts of particular cases within a principled framework of appellate guidance" (Roberts and Zuckerman, at pp. 486-87).

                                                              …

45   As the Ontario Court of Appeal found in Zebedee, "Vetrovec was like a breath of fresh air. It put a premium on common sense and it recognized that juries were intelligent and they could be trusted to do the right thing... Elaborate instruction, the Court said, was not needed" (para. 81). No benefit comes from a return to the overly rigid pre-Vetrovec era.

[70]        Justice Fish identified the elements of the principled framework:

36     Though he arrived at a different result, Binnie J. agreed in Brooks (at para. 130) that what matters, in determining the need for a clear and sharp warning, is not the judge's personal opinion as to the trustworthiness of the witness, but whether there are factors which experience shows us as requiring "that the witness's story be approached with caution".

37     In Sauvé, at para. 82, the Ontario Court of Appeal set out a principled framework that will assist trial judges in constructing Vetrovec warnings appropriate to the circumstances of each case. That proposed framework, which I adopt and amplify here, is composed of four main foundation elements: (1) drawing the attention of the jury to the testimonial evidence requiring special scrutiny; (2) explaining why this evidence is subject to special scrutiny; (3) cautioning the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that the evidence is true; and (4) that the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused (R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 17-19). [Justice Fish’s italics]

38     While this summary should not be applied in a rigid and formulaic fashion, it accurately captures the elements that should guide trial judges in crafting their instructions on potentially untrustworthy witnesses. The fourth component, of particular interest on this appeal, provides guidance on the kind of evidence that is capable of confirming the suspect testimony of an impugned witness.   

                                                              …

44 I agree with the Ontario Court of Appeal in Sauvé that a Vetrovec warning should address, in terms appropriate to the circumstances of each case, the four elements outlined above. Where the caution has these characteristics, an appellate court, in the absence of some other flaw in the instructions, will generally be expected to find the caution adequate. I emphasize, however, that failure to include any of the components in the terms outlined above may not prove fatal where, as in this case, the judge's charge read as a whole otherwise serves the purposes of a Vetrovec warning.

[71]        Shortcomings may be remediated elsewhere in the charge. The appeal court should assess whether the jury understood, from the charge as a whole, that it is unwise to convict simply on the evidence of the untrustworthy witness, unless other evidence comforted the jury that the witness was truthful. Justice Fish put it this way:

15  Read as a whole, and in the context of the trial, the charge to the jury in this case was adequate. Any shortcomings in the Vetrovec caution itself were compensated for in the remainder of the charge. I am satisfied that the jury would have understood that it could not convict the appellants on the basis of the evidence of the impugned witnesses unless they found elsewhere in the dance sufficient comfort that those witnesses were telling the truth.

                                                                       …

51     With respect, I would not characterize the trial judge's Vetrovec caution as a model to be followed in other cases. In my view, however, it adequately conveyed to the jury the degree of special scrutiny to be applied in weighing the testimony of Sandoval and Stein.

52     In the context of this case, where allegations of corroboration and collusion between the impugned witnesses and others were made, the trial judge's warning should have better explained the need for confirmatory evidence to be independent and relate to an important and relevant aspect of the impugned testimony. However, any deficiencies in the Vetrovec caution itself were compensated for in other portions of the charge. Read as a whole, and in the context of the trial, I am satisfied that the charge to the jury was adequate.

53     The difficulty with the warning was not the absence of the words "independent" and "material", but rather its failure to clearly convey to the jury the message that not all evidence is capable of providing a level of comfort or confidence required for conviction. The trial judge simply directed the jury to look for "some confirmation of their evidence from somebody or something other than what they have to say".

. . .

55     As mentioned earlier, however, I am satisfied that the shortcomings in the Vetrovec warning itself were compensated for in other parts of the charge. The trial judge repeatedly alerted the jury to the possibility of collusion and the motive that Stein and Sandoval had to lie. For example, the trial judge, in reviewing the evidence of the impugned female witnesses, reminded the jury of the defence position that they had collaborated with Stein and Sandoval in concocting their stories. The trial judge also reminded the jury of Sandoval's admission that the police had, early in the investigation, "leaned on him" and accused him of "'masterminding' the murder". Accordingly, the judge told the jury that it had been suggested that Sandoval lied "to take the heat off himself and accuse Khela and company".

56    In reading the charge as a whole, I am persuaded the substance of a proper Vetrovec caution was communicated adequately, albeit imperfectly, to the jurors. They were told the danger of relying on the unsupported evidence of Stein and Sandoval and directed to the types of evidence in which they might find confirmation of that evidence. Accordingly, I would dismiss the appeal on this ground.

[72]       The charge should guide the jury on the type of evidence that the jury might treat as confirmatory. Justice Fish said:

46 That said, the absence or presence of confirmatory evidence plays a key role in determining whether it is safe to rely on the testimony of an impugned witness (Harris, at p. 222). Accordingly, the instruction to the jury must make clear the type of evidence capable of offering support. It is not sufficient to simply tell the jury to look for whatever it feels confirms the truth of a witness' testimony (see R. v. Chenier (2006), 205 C.C.C. (3d) 333 (Ont. C.A.), at para. 34).

47     It is not "overly formalistic" to ensure that triers of fact attain the appropriate level of comfort before convicting an accused on the basis of what has for centuries been considered unreliable evidence. A truly functional approach must take into account the dual purpose of the Vetrovec warning: first, to alert the jury to the danger of relying on the unsupported evidence of unsavoury witnesses and to explain the reasons for special scrutiny of their testimony; and second, in appropriate cases, to give the jury the tools necessary to identify evidence capable of enhancing the trustworthiness of those witnesses.

[73]        Justice Fish commented on the types of evidence that may be confirmatory:

39     Common sense dictates that not all evidence presented at trial is capable of confirming the testimony of an impugned witness. The attribute of independence defines the kind of evidence that can provide comfort to the trier of fact that the witness is telling the truth. Where evidence is "tainted" by connection to the Vetrovec witness it can not serve to confirm his or her testimony (N. Harris, "Vetrovec Cautions and Confirmatory Evidence: A Necessarily Complex Relationship" (2005), 31 C.R. (6th) 216, at p. 225; R. v. Sanderson, 2003 MBCA 109, 180 C.C.C. (3d) 53, at para. 61).

40     Materiality is a more difficult concept. In Vetrovec, the Court did away with the requirement that corroborating evidence implicate the accused. As Dickson J. noted, such evidence is not the only type capable of convincing a jury that a witness is telling the truth. In Kehler, the Court confirmed that evidence, to be considered confirmatory, does not have to implicate the accused. We maintain that position here.

[74]        In my view, the Chief Justice’s Vetrovec warning satisfied Khela’s principles.

[75]         Chief Justice Kennedy told the jury that Lawrence’s testimony required special scrutiny because Lawrence was “the ultimate unsavoury character”, and explained why.

[76]         I disagree with Greenwood’s submission that the warning was insufficiently specific as to “why”. Greenwood’s counsel suggests deficiencies respecting Lawrence’s drug addiction, mental health, record of weapons offences and role as an accomplice. Mental illness and drug addiction may affect reliability, to be assessed by the jury, but do not necessarily signal the “unsavoury” character that generates the special Vetrovec caution:  Brooks, para. 9, per Bastarache J., for the plurality.  In any case, the Chief Justice told the jury that Lawrence was a “heavy drug user” and noted the evidence of his “zombie”-like mental state. The Chief Justice cited Lawrence’s criminal past and noted that particulars were on his criminal record, in the jury’s possession. In Vetrovec, p. 830, Justice Dickson, as he then was, said “there is no special category for ‘accomplices’ ”, and “[a]n accomplice is to be treated like any other witness testifying at a criminal trial and the judge’s conduct, if he chooses to give his opinion, is governed by the general rules”.

[77]        The Chief Justice’s warning cautioned that it was risky to convict based only on Lawrence’s evidence, though the jury could do so if satisfied that Lawrence was truthful, advised the jury to seek confirmatory evidence, and gave examples of potential confirmatory evidence.

[78]        I disagree that the confirmatory evidence must suggest Greenwood was the trigger man. Confirmatory evidence should support the truthfulness of the impugned witness, but need not directly implicate the accused: Khela, para 40;  Kehler, paras 15-16, per Fish, J. for the Court; Vetrovec, pp. 826-28, per Dickson, J. for the Court. 

[79]        The Chief Justice’s Vetrovec warning contains no appealable error. I would dismiss this ground of appeal.

                                   8. Third Issue – Mr. Bailey’s Evidence

[80]        In his direct examination, Lawrence testified that on the day of the Mersereau/Christensen murders, Lawrence had the .32 while Greenwood had the .357 Magnum. On April 27, 2012, during Lawrence’s cross-examination, Greenwood’s counsel showed Lawrence an Agreed Statement of Facts filed with the Court for Lawrence’s sentencing in January 2012. The Agreed Statement, signed by Lawrence, said:

The following day while armed with the same handgun he used to kill Mr. Maddison, Mr. Lawrence and an accomplice went to the residence of the two victims, Kirk Mersereau and Nancy Christensen.

Lawrence had used the .357 to shoot Maddison. Greenwood’s counsel suggested to Lawrence that, by signing the Agreed Statement, Lawrence acknowledged that “he” - i.e. Lawrence - was “armed” with the .357 for the Mersereau/Christensen murders.

[81]        The Crown objected to the use of the Agreed Statement. The Chief Justice allowed the cross-examination, but the Agreed Statement itself was not admitted into evidence.

[82]        On the cross-examination, Lawrence testified:

Q.  And you saw that and read that before you signed it, correct?

A.  Yes, I did.

Q.  And you signed that stating that it was the truth?

A.  Yes, I did. But I have something to say. I think that I thought that says, “while armed with the same handgun,” that meant two of each with a gun. I believe that’s what I thought.

[83]        Mr. Lawrence’s lawyer for his sentencing had been Mr. Brian Bailey.

[84]        On May 2, 2012, the Crown submitted an Affidavit of Mr. Bailey and called Mr. Bailey as a witness. Mr. Bailey’s Affidavit, sworn April 28, 2012, included:

1. I am the Counsel for Michael John Lawrence and except where otherwise stated, have personal knowledge of the matters hereinafter deposed to.

2.  Mr. Lawrence was charged and pled guilty to the following charges: … [summaries of  indictments for first degree murder of Maddison, Mersereau and Christensen are omitted]

3.  Mr. Lawrence pled guilty and was sentenced on January 10, 2012 before Justice Moir.

4.  In preparation for that sentencing, a document entitled “Agreed Statement of Facts” was prepared by Mr. Craig, Crown attorney and sent to me for my concurrence in consultation with my client.

5.  My understanding of the matter was that Mr. Lawrence used a .357 calibre firearm to kill Mr. Charles Maddison on September 8, 2000 which he was given by an accomplice and subsequently returned the firearm to that accomplice.

6. The following day, acting on direction from that accomplice, Mr. Lawrence and another individual were given the .357 calibre firearm and a .32 calibre firearm and they went to a residence at or near Centre Burlington Nova Scotia and shot Mr. Mersereau and Ms. Christianson.

7.  In the Agreed Statement of Facts, I never intended or understood the meaning to be that my client:

a. had the .357 calibre handgun on his person while travelling to the Mersereau - Christianson residence; or

b. he used the .357 calibre handgun to shoot either Mersereau or Christianson.

8.  I am not aware of any prior statement or testimony from Mr. Lawrence where he ever stated he had the .357 calibre firearm on his person at any material time either travelling to or during the murders of Mr. Mersereau or Ms. Christenson, nor that he used the .357 calibre firearm in those murders.

                                                              …

[85]        Greenwood’s counsel, Mr. Begin, objected to the introduction of Mr. Bailey’s affidavit:

if my friends intend on introducing that affidavit as an exhibit, I would be objecting to that, My Lord.

Mr. Begin explained:

…The issue that’s relevant that we’re discussing right now is the knowledge of Michael Lawrence, not the knowledge of … if you look at the affidavit, I’m sure Your Lordship has seen it, it’s a lot of what his understanding of the matter was. That’s not relevant and not important for here today.

[86]        The judge admitted the Affidavit, saying:

THE COURT:  All right. I am going to permit the use of the affidavit in evidence. I’m doing that on the basis that counsel, Mr. Brian Bailey, is present before this court and going to be available to respond to statements in the affidavit, his own affidavit, and secondly will be available for purposes of cross-examination.

Mr. Bailey’s affidavit was entered as Exhibit 49.

[87]        Mr. Bailey then testified. Defence counsel did not object to Mr. Bailey’s viva voce testimony. His direct examination by the Crown reiterated the points in his Affidavit. He was cross-examined.

[88]        At no time did the Chief Justice give a limiting instruction on the jury’s permitted use of Mr. Bailey’s affidavit or viva voce evidence. The judge did not,  for instance, tell the jury that Mr. Bailey had no personal knowledge of the events of September 9, 2000, and that his evidence should not be taken as confirmatory of Lawrence’s version of the events on that day. The jury was not instructed that Mr. Bailey’s evidence of the events of September 9, 2000 was hearsay.

[89]        In his closing address to the jury, counsel for the Crown, Mr. Craig, said:

There was also the issue about the agreed statement of facts with Brian Bailey where it was tried … it was suggested in cross-examination that that was Mr. Lawrence’s acknowledgement that he had the .357. I don’t know if you would recall that. We heard from Mr. Bailey and he explained to you the drafting of what it was meant to reflect.

And, ladies and gentlemen, I’m going to be … I don’t know if I’ll be the first to say it, but I’m going to say it. I was associated with that process, myself. And I’m not giving you evidence. I don’t want to be seen to be doing that. You can determine if the language should have been tighter. And if you want to point any fingers, you can point them this way. I’m not standing here before you, and I can’t and I won’t, tell you what I think that document was meant to reflect. But I was responsible and involved in its generation. And if you want to point some blame, you can point it my way. I’m going to have to wear that one.

[90]        On the appeal, Greenwood submits that Mr. Bailey’s evidence was inadmissible oath-helping hearsay.

[91]        Mr. Bailey’s evidence generates several issues.

                                      Prior Consistent Statement

[92]        It is Lawrence’s account of the events of September 9, 2000 that is relevant.  Clearly Lawrence’s explanation of his signed statement was admissible. The jury heard Lawrence say what he intended by his Agreed Statement (above para 82): “I think that I thought that says, ‘while armed with the same handgun,’ that meant two of each with a gun. I believe that’s what I thought.”  Lawrence was cross examined on what Greenwood’s counsel suggested was a prior inconsistent statement, Lawrence disagreed that there was an inconsistency, and explained his view. The Crown had the opportunity on redirect to examine Lawrence further as to his intent with the Agreed Statement.

[93]        The issue is whether Mr. Bailey’s evidence about the topic was admissible.

[94]        Mr. Bailey was not at Mersereau’s home on September 9, 2000. His understanding of the events of September 9, 2000 is irrelevant hearsay. Nor does he have personal knowledge what was in Lawrence’s mind when Lawrence signed the Agreed Statement. The most Mr. Bailey could say was that, during the drafting of the Agreed Statement in January 2012, Lawrence told him what happened on September 9, 2000. If Lawrence told Mr. Bailey that the accomplice (i.e. Greenwood) had the .357, used to shoot the victims, that would be consistent with Lawrence’s testimony on his direct examination at Greenwood’s trial.  So Mr. Bailey’s contribution to the Greenwood trial would be  to relate Lawrence’s prior consistent statement.

[95]        In R.v. Stirling, [2008] 1 S.C.R. 272, R. v. Dinardo, [2008] 1 S.C.R. 788 and R. v. Ellard, [2009] 2 S.C.R. 19 the Supreme Court outlined the principles that govern the use of prior consistent statements. On this appeal, neither counsel referred to the Supreme Court’s trilogy, or to the framework of analysis outlined in those authorities.  

[96]        In Stirling, Justice Bastarache for the Court opened his analysis by saying:

[5]  It is well established that prior consistent statements are generally inadmissible [citations omitted], This is because such statements are usually viewed as lacking probative value and being self-serving [citation omitted].

To the same effect: Dinardo, para 36 and Ellard, para 31.

[97]        Mr. Bailey’s evidence of Lawrence’s prior consistent statement is inadmissible under the general rule, unless the Crown establishes an exception to the rule.  One exception permits the rebuttal of an allegation of “recent fabrication”, to which I will return shortly. The other exceptions to the rule do not apply: exceptions outlined in Hill, Justice S. Casey; Tanovich, David M.; and Strezos, Louis P., editors, McWilliams’ Canadian Criminal Evidence, 5^th ed., looseleaf (Canada Law Book, Toronto), vol. 2, para. 11:40 ff.. Lawrence’s statements to Mr. Bailey in January 2012 are not part of the criminal event that occurred eleven years earlier, and do not enter under the narrative exception. So this case is  unlike R. v. Ward. 2011 NSCA 78, paras. 39, 46-47, leave denied August 14, 2014 (S.C.C.).

[98]        The Crown’s submission, though not labelled as such, has some trappings of the “recent fabrication” exception to the rule against prior consistent statements. I will address it from that perspective.

[99]        MacWilliams’ Canandian Criminal Evidence says, of the “recent fabrication” exception:

11:40:10 Recent Fabrication

A prior out-of-court consistent statement may be admitted into evidence if has been suggested that a witness has “recently” fabricated portions of his or her evidence. In order to be admissible, the statements must have been made prior to when the motive to fabricate arose. In such circumstances, the statement is not admitted for the truth of its contents but rather to rebut an allegation that the witness’s testimony may have been fabricated or affected by an improper motive.

The application of this exception is dependent upon identifying a discrete factual event that the Crown or defence alleges is the source of the witness’s fabrication. …

Courts must be vigilant not to confuse an allegation of a discrete factual event that is alleged to be the source of a witness’s fabrication with a general theory proposed by one party that a particular witness is fabricating their evidence. While the former will trigger the recent fabrication exception, the latter does not. …

When an allegation of a discrete reason for fabrication is made, the witness’s credibility can be bolstered by a prior consistent statement, if it was made at a period of time when the improper influence alleged did not exist.

[MacWilliams’ italics]

[100]   In Stirling, Justice Bastarache said:

[5] … There are, however, several exceptions to this general exclusionary rule, and one of these exceptions is that prior consistent statements can be admitted where it has been suggested that a witness has recently fabricated portions of his or her evidence [citations omitted]. Admission on the basis of this exception does not require that an allegation of recent fabrication be expressly made – it is sufficient that the circumstances of the case reveal that the “apparent position of the opposing party is that there has been a prior contrivance” [citation omitted] … Prior consistent statements have probative value in this context where they can illustrate that the witness’s story was the same even before a motivation to fabricate arose. [emphasis added]

[101]   In Ellard, Justice Abella for the majority expanded on the point:

[33]  To be “recent”, the fabrication need only have been made after the event testified about (Stirling, at para. 5). A mere contradiction in the evidence is not enough to engage the recent fabrication exception. However, a “fabrication” can include being influenced by outside sources [citation omitted]. To rebut an allegation of recent fabrication, it is necessary to identify statements made prior to the existence of a motive or of circumstances leading to fabrication. In all cases, the timing of the prior consistent statements will be central to whether they are admissible.

[34]  In this case, the statements put to Ms. Bowles on re-examination were not made prior to the atmosphere of rumour and speculation that the defence claimed had led to her changed memory. As a result, their timing prevented them from being capable of rebutting an allegation of recent fabrication. The trial judge therefore erred in ruling that the re-examination was permissible on the basis of this exception.  [emphasis added]

[102]   Greenwood does not allege that Lawrence had a particular motive to fabricate. Nobody has identified what MacWilliams terms a “discrete factual event” or “improper influence” that would generate a motive to fabricate. There is no evidence of  such an event or influence after Lawrence’s Agreed Statement in January, 2012. To the contrary, one can infer that Lawrence’s self-interest to shift blame would  be greater before his January sentencing hearing than afterward. If this were so, then Lawrence’s statements to Mr. Bailey would post-date any motive to fabricate. The lynchpin of the exception is an identified motive to fabricate that developed after the prior statement. That condition is missing in this case.  

[103]   Mr. Bailey’s evidence about what Lawrence told him of the events of September 9, 2000 does not satisfy the requirements of the “recent fabrication” exception, or any other exception.  It is inadmissible under the general rule against prior consistent statements.

[104]   In my respectful view, the Chief Justice erred in law by admitting Lawrence’s prior consistent statement through Mr. Bailey’s affidavit.

                                   Facts Outside Personal Knowledge

[105]    It is axiomatic that evidence, entered for the truth of its contents, must speak to facts within the witness’ personal knowledge. Otherwise, it is speculation or hearsay.

[106]   Mr. Bailey’s Affidavit says:

6. The following day, acting on direction from that accomplice, Mr. Lawrence and another individual  were given the .357 calibre firearm and a .32 calibre firearm and they went to a residence at or near Centre Burlington Nova Scotia and shot Mr. Mersereau and Ms. Christianson. [emphasis added]

[107]   Mr. Bailey’s affidavit opens by saying “except where otherwise stated” he has “personal knowledge of the matters hereinafter deposed to”. Mr. Bailey does not prefix para. 6 with  “I was informed by Michael Lawrence”. A lawyer, reading para. 6, might presume such a notional prefix.  But this was a  jury. Juries rely on the judge for rulings on evidence and qualifications on purpose and usage. Literally, Mr. Bailey swore that on September 9, 2000 “they” – i.e. Mr. Lawrence and his accomplice, whom the jury knew to be Greenwood  – “shot Mr. Mersereau and Ms. Christenson”. Had Mr. Bailey, sitting in the witness stand, told the jury “Lawrence and Greenwood shot Mersereau and Christensen”, an objection would be sustainable, that evidence would be struck, and counsel would be instructed to re-phrase the question so Mr. Bailey would speak only to matters within his personal knowledge.

[108]   Even if the “recent fabrication” exception had applied, Mr. Bailey’s Affidavit para. 6, as written, should have been excluded.

[109]   If Mr. Bailey’s evidence had entered to rebut an allegation of recent fabrication, its scope would be limited to those facts in his personal knowledge. Those facts would include the chronology between Messrs. Lawrence and Bailey that led to Lawrence’s signature on the Agreed Statement of Facts, including Lawrence’s statements to Bailey about the events of September 9, 2000. Lawrence’s statements to Bailey would enter not to show truth of their contents, but to rebut the Defence’s suggestion of Lawrence’s recent fabrication (Stirling, para. 7; MacWilliams, para. 11:40:10, above para. 99).

[110]   This means that at least the jury should have been cautioned that Mr. Bailey’s evidence was not entered for the truth of its contents, and could not be taken as confirmatory of Lawrence’s version of events on September 9, 2000. The Chief Justice repeatedly gave similar cautions for Jeff Lynds’ audio statement, that I will discuss later (paras. 129, 131). But there was no caution for Mr. Bailey’s evidence. The jury was left to consider that, as Mr. Bailey’s evidence did not generate a caution, apparently it differed from Lynds’ statement, and the jury’s use of Mr. Bailey’s understanding of the facts was unconstrained. This case isn’t like Ward, supra, paras. 46-49, where the trial judge gave clear instructions on the jury’s limited use of the statement.

[111]   Mr. Bailey’s Affidavit was entered as an exhibit.

[112]   Normally, evidence in a criminal trial is viva voce. In R. v. Veinot [1983] N.S.J. No. 538 (S.C.A.D.), Macdonald, J.A. said:

8.  The general principle or rule is that evidence in a criminal case must be given viva voce unless some other method of doing so is expressly permitted by statute or unless the accused admits the particular fact in issue. If support for such a statement is needed it may be found in the judgment of the Ontario Court of Appeal in R. v. Bowles (1974), 16 C.C.C. 425, per Estey, J.A., at p. 435…

This is particularly pertinent in a jury trial, where the jury has the exhibits during its deliberations. An affidavit entered as an exhibit has de facto pre-eminence over viva voce testimony.

[113]   During its deliberations, while seeking confirmatory Vetrovec evidence, the uncautioned jury was free to peruse Mr. Bailey’s para. 6 and find comfort from the assertion by a member of the Bar – whom the Chief Justice described to the jury as “a sworn officer of the Court” - that “they [Greenwood and Lawrence] … shot Mr. Mersereau and Ms. Christensen”.

                                            Crown’s Closing Address

[114]   The Crown’s closing address (above para 89) didn’t help.

[115]    Mr. Craig told the jury: “I was associated with that process”, and “if you want to point any fingers, you can point them this way”, and “if you want to point some blame, I’m going to have to wear that one”. The sotto voce message was that Greenwood, not Lawrence, had the .357 on September 9, 2000, and insofar as the wording of Lawrence’s Agreed Statement gave a different impression, that discrepancy was caused by Mr. Craig’s conduct, and the jury should overlook the discordant wording. The submission would not be problematic if it was based simply on evidence. But counsel for the Crown asked the jury to accept that message from the perspective that he personally had been “associated with that process”. Mr. Craig said “I’m not giving you evidence”. But essentially that is what he did, without taking the witness stand. Counsel’s address to the jury should not rely on counsel’s extra-evidential “personal experience or observations”: Pisani v. The Queen, [1971] S.C.R. 738, at p. 740, per Laskin, J., as he then was, for the Court.  

[116]   So the jury had quasi-factual assertions from a second lawyer to assist their search for Vetrovec confirmation of the events of September 9, 2000.

[117]   The Chief Justice’s jury charge said nothing about Mr. Craig’s comment.

                                        Summary – Mr. Bailey’s Evidence

[118]   In my respectful view, the Chief Justice’s treatment of Mr. Bailey’s evidence embodies errors in law (1) by admitting Mr. Bailey’s affidavit evidence of Lawrence’s prior consistent statement, and (2) by failing to give the jury a qualifying instruction on its use.

[119]   Counsel for the Crown submits that the Chief Justice’s repeated cautions for Jeff Lynds’ statement, that I will discuss next, gave the jury an “evidence class” in hearsay. So the jury would know that it could not use Mr. Bailey’s evidence as Vetrovec confirmation.  In my view, that the jury was cautioned about evidence of other witnesses does not alter the inadmissibility of Mr. Bailey’s para. 6, or the Chief Justice’s error of law in its treatment. The Crown’s submission belongs in the analysis of  s. 686(1)(b)(iii)’s curative proviso, that I will address later (para. 151,  157).  

                                        9. Fourth Issue - Jeff Lynds’ Recording

[120]   During the trial, the Crown played for the jury Greenwood’s videotaped interrogation by the police. The interrogation included long soliloquies by police officers, not adopted by Greenwood, that related facts outside the officers’ personal knowledge. But those were not the subject of an objection at trial or a ground of appeal. So I won’t comment on them.

[121]   The interrogation also included an audio tape of an interview with Jeff Lynds, who was dead by the time of Greenwood’s trial. Greenwood’s jury heard a tape within a tape. Jeff Lynds’ audio tape includes Lynds  (“JL”) saying that Greenwood and Lawrence went to Mersereau’s home, then:

FF:  What then, what?

JL:  Kirk and his wife

FF:  His wife Nancy

JL:  He, he only wounded them, and then Michael, or, the shots go off, he, he

JL:  came in the house, on his way in he shot the dog, which was, I believe somewhere around the door

FF:  Ok

JL:  At the time

FF:  Ok

JL:  He shot …(End of tape) [emphasis added]

[122]   So the jury heard a taped Jeff Lynds say that “he” - i.e. Greenwood  - fired the first shots at Kirk and Nancy, and “wounded  them”, before Michael Lawrence entered the Mersereau house and shot them again.

[123]   Jeff Lynds wasn’t at Mersereau’s home on September 9, 2000. The quoted passage, entered without Lynds’ attendance at Greenwood’s trial, was exponential hearsay. Even if  Lynds had taken the witness stand, he could not have testified to those events. If Greenwood had testified, the Crown could not have put Lynds’ inadmissible statement about the occurrences at Mersereau’s home, to Greenwood on cross-examination:  R. v. Lyttle, [2004] 1 S.C.R. 193, para. 61; R. v. Palmer, 2010 ONCA 804, para. 5. Even if Lynds’ statement had been hypothetically admissible, but merely unproven, Greenwood could not have been cross-examined on it unless the trial judge first balanced probative value and prejudicial effect: R. v. Mallory, 2007 ONCA 46, paras. 228, 257-65. Yet Lynds’ statement finessed its evidential obstacles to emerge before this jury simply because the police  embedded it in their interrogation. During its deliberations, the jury had the tape, as am exhibit, in the jury room with playback equipment.

[124]   Greenwood’s counsel objected to the admission of the Jeff Lynds’ extracts:

MR. BEGIN: Yes, thank you, My Lord. To be specific, what happens is twice in the statement … it’s the statement of Jeff Lynds who theoretically now is dead. I can’t cross-examine that individual. And Jeff Lynds obviously is going to come out in this trial as the kingpin, the big Hell’s Angels kingpin.

THE COURT: Yeah.

MR. BEGIN: And once if not twice in the statement, Jeff Lynds basically says, well, here’s what happened at the house. No one, no one ever alleges that Jeff Lynds was there. So he would have been told this by someone else.

And my concern is the jury, seeing the Hell’s Angels kingpin saying these things, are going to accept it as the gospel truth. Well, jeez, you know, if Jeff Lynds is saying this, it must be true. That’s my concern. I’m not so sure how much we could ever warn the jury and they’ll discount that.

That’s my concern, and that’s what I raised to my friends. You know, the police are putting allegations all day long and that’s fine. There’s, I think, 12 hours of it, and that’s fine. But those two specific points where it’s Jeff Lynds saying this, and Jeff Lynds’ position in all this, that’s the concern I have.

[125]   The Chief Justice then ruled:

THE COURT: Firstly, I’m going to allow the tape to be played. Secondly, I’m going to caution this jury and make sure that it’s the answers from Mr. Greenwood that is evidence in this matter, and not what the police officers say to him. That’s not evidence.

That’s not evidence. And it is to be … the only proper consideration of the questions put is to allow the jury to consider the answers given, and not the reliability of the questions put.

So I will draft something that I’m satisfied is a proper caution to this jury in relation to that situation. I’m reasonably satisfied I can do that. This is a smart jury. This is a smart jury. They’re going to need specific cautions and directives in relation to many things during the course of this trial.

We’ve already been through a challenge for cause with these people, so we know that they’ve promised to consider what they should consider and to ignore what they should ignore. And I’m satisfied that we can do what we wish to do, we don’t  in any way compromising the fairness of this trial. Thank you.

That being said, the caution, Mr. Begin, your concern and the caution is on the record. Thank you.

[126]   At the time of this ruling, the Chief Justice had not viewed the video with Lynds’ embedded excerpts. This was confirmed by both counsel, in post-hearing submissions, in response to a question from the Court at the hearing of the appeal.

The Chief Justice did not conduct a voir dire before his ruling that the video, with Lynds’ audio excerpts, would be admitted. His ruling conducted no balancing of prejudice and probative value of the Lynds’ excerpts.

[127]   The tape was played to the jury.

[128]   Then, in the jury’s absence, the Chief Justice expressed second thoughts:

THE COURT:  … I was thinking during the break that if I had seen it coming up, I might well have considered a probative versus prejudicial aspect to it. It’s … now it’s been said. It’s before the jury, but I’m going to have to concentrate on making sure they do not consider that to be evidence that can be used for any other purpose other than context in relation to statements.

MR. BEGIN: And that’s the concern I had at the start of this, My Lord. I indicated a couple of Jeff Lynds’ comments in the statement that I had asked to be taken out. We’re now where I was concerned we’d be.

[129]   Thereafter, the Chief Justice repeatedly cautioned the jury not to use Jeff Lynds’ statements for the truth of their contents, but only as context to assess Greenwood’s statements:

-          THE COURT: Jury, I’d like to speak to you again for a moment about the proper use of what’s going on here. I may be a broken record, but it’s very important that this evidence is used for the proper purpose. Everything being said in that video, whether coming rom that interrogation room, the people in the interrogation room or the … or from the computer, specifically a portion of the statement of Jeffrey Lynds. Everything that is in this video … with the exception of the things that the defendant Mr. Greenwood says, everything else is context and does not go to the truth of the content.

      You can watch it. It allows you to put Mr. Greenwood’s responses in context when you consider his responses, his statement, but it’s not evidence in and of itself. We don’t know if all of the information that’s being provided by the police officer,  by Cpl. Firth, is accurate or not. We don’t know that. What we know is that he’s saying it to Mr. Greenwood and ultimately Mr. Greenwood will make responses.

      That’s particularly important in relation to that portion of the statement of Mr. Jeffrey Lynds that was just played for the benefit of Mr. Greenwood in the interrogation room. That’s evidence in this matter because it puts Mr. Greenwood’s reaction down the road, his reaction in response to the various questions in context, but it is not information that can be used for the truth of the content. And that’s particularly important. I want to dwell on this, because it’s particularly important in this respect.

      … What [Jeff Lynds] says is not evidence to the truth of the content. It can’t … it cannot be used to corroborate Mike Lawrence’s testimony. …

      What he says in relation to Les, “My plan with Les came together and they went to the farm”, that’s not evidence in this matter to establish the truth of that. You have to disregard that in relation to the truth, in relation to the issue of guilt or the innocence of Les Greenwood. It is only evidence before you to put in context what was being said to Les Greenwood. Obvious to what the officer is doing in the course of the …of that interrogation is upping the pressure on Les Greenwood in relation to making a statement, and that’s what this is all about. This is all about that context. It’s not about what Jeff Lynds said as being the truth of anything.

      So I’m asking you under oath, as jurors, to use that evidence, that tape of Les Greenwood, for the right reason. That tape of Jeffrey Lynds for the right reason, as context in relation to anything that Les Greenwood may say but not for the truth of the contents. And I know that … I hope that I’ve made myself …  reasonably clear, and I’m sure that … this is a good jury. This jury knows what I’m talking about.

      And you know when you get down to basics what’s fair. What’s fair is evidence subject to cross-examination coming before you under oath in this trial. And this isn’t that kind of evidence. So use this kind of evidence for other purposes but not for the truth of the content.

-          THE COURT: Jury, I know I’ve said this many times to you before, but … and I know you understand me, but I want to say it again for the purposes of the record. We just heard this officer play an excerpt from a statement that he had taken from Jeffrey Lynds to … Les Greenwood. To Les Greenwood. Obviously, for the purpose of getting a reaction from Les Greenwood.

That statement from Jeffrey Lynds is not evidence to establish the truth of the content of what Jeffrey Lynds is saying. It is simply played for your benefit so that you will be able to put into context and understand better,  reactions of Les Greenwood.

-          THE COURT: … Things that Jeff Lynds is saying on tape, being played on that computer, the statements being made by this police officer in those circumstances, none of that is evidence to establish the truth of anything. What it is, is context so that you can understand what’s going on in the course of the taking of that statement. How long they’ve been talking to Les Greenwood, what he’s being told, what he sees, what he watches, what … all of the surrounding context so that you can assess that when you consider his statement. And it is his statement that is the only part of that video that can be used for purposes of determining the guilt or the innocence of Mr. Greenwood before this Court. So I know I say that over and over again, but it is very important that the jury use that evidence for the correct purpose, for the purpose that it’s intended.

[130]   In his pre-charge discussion with counsel, the Chief Justice said:

I am particularly concerned that the proper use and the minimal use of that statement … really, it’s only to put it into context. It goes to the credibility of the answers.

[131]   The Chief Justice’s jury charge said:

If you were [sic] use what Jeffrey Lynds says on that tape in relation to the ultimate determination of the guilt or the innocence of Les Greenwood, that would be a bad verdict. It’s that simple. You cannot use it for that purpose.

Please … you can use it for context in relation to his … the statements that … and the answers that Les Greenwood is giving and the Crown has every right to put that statement before you to allow you to consider the various things that he said, but do not use what was played for his benefit against him in any manner unless, in the one instance, they talk about the fact that he totally adopted something. Do not … one thing he didn’t adopt was what Jeff Lynds … Lyons … I have a problem with that surname, obviously … Jeff Lyons was saying. So please use it in the right context.

[132]   This passage charged the jury “do not use what was played for his benefit against him in any manner unless, in the one instance, they talk about the fact that he totally adopted something” but “one thing he didn’t adopt was what Jeff Lynds … was saying.” The passage acknowledged that what Jeff Lynds said about the murders has no probative value. This may be coupled with the Chief Justice’s mid-trial comment to counsel after the tape had been played to the jury (above para 128): “if I had seen it coming up, I might well have considered a probative versus prejudicial aspect to it”. It appears that, in retrospect, the Chief Justice wished he had weighed the non-existent probative value against the clear prejudice. 

[133]   With respect, the Chief Justice should have seen it coming. The Crown did not suggest to the Chief Justice that the Lynds’ excerpts were admissible under the principled approach, or as some exception to the hearsay rule for dying declarations, or were in any way usable for the truth of their contents. Counsel for Greenwood objected to the Lynds’ excerpts. His submission expressed the very concern that later materialized (above para 124). The Chief Justice dismissed the objection without any reasoned comment on the Lynds’ excerpts, except to say “your concern and the caution is on the record” (above para 125).

[134]    In R. v. Hodgson, [1998] 2 S.C.R. 449, Justice Cory said:

41. … Thus, the test for holding a voir dire is assessed by an appellate court’s objective review of the evidence in the record to determine whether something should have triggered the trial judge’s obligation to conduct an inquiry.

[135]   In my respectful view, once the Chief Justice heard counsel’s submission about the Lynds’ excerpts, he should have either conducted a voir dire, or listened to those excerpts, before ruling that the jury should hear them.

[136]   The Crown’s appeal factum acknowledges that the Lynds’ excerpts were not admissible for the truth of their contents, and says:

29.  The correct approach to determine the admissibility of the impugned excerpts would have been for the Defence to make an editing application on the basis that the prejudicial effect of the impugned passages outweighed their probative value.

Defence counsel did submit that the jury should not hear the critical Lynds’ excerpts (above para 124). Essentially, this was an editing request denied by the Chief Justice.

[137]   It is undisputed that the Lynds’ excerpts have no independent probative value from Lynds.

[138]   Immediately after the end of the tape with the Lynds’ excerpt (quoted above,  para. 121), and before Greenwood had the opportunity to say anything, the interrogating officer spoke in a monologue, on various topics, for several pages of transcript. Lynds’ quoted excerpt was not played to Greenwood for his immediate reaction, or spliced into a chopped dialogue during which the jury had to hear Lynds to understand Greenwood. The Lynds’ excerpts do not aid the comprehension of what Greenwood said happened at Mersereau’s home (see above, para 37).  

[139]    Greenwood denied that he shot anybody, or even had a gun. He denied it on a free standing basis,  and when he was eventually asked about the Lynds’ excerpts. As the Chief Justice’s jury charge acknowledged (above, para 131), the Lynds’ excerpts have no adopted probative value through Greenwood.

[140]   The interrogation occurred in December 2010, over ten years after the murders.  Greenwood’s reaction to the Lynds’ excerpts was not knotted into the criminal event, and doesn’t qualify as narrative. This case is unlike Ward, supra, paras. 46-48.

[141]   The potential for prejudice is obvious. The outcome of any balancing exercise, had one been performed after a voir dire, would have been that clear prejudice out-weighed minimal probative value.

[142]   Had there been a voir dire, the Chief Justice would have heard the extracts before the jury heard them. Then, instead of regretting (above para 128) “now it’s been said. It’s before the jury”, he could have ordered that the Lynds’ excerpts be  redacted from the version played to the jury and from the transcribed interrogation.

[143]   As it happened, the jury heard the Lynds’ excerpts. So the Chief Justice had to use repeated cautions to constrain the jury’s use of them. The jury was clearly instructed not to use Jeff Lynds’ statements for the truth of their contents. The Chief Justice could not have been more explicit. If those had been the only instructions then, under the normal principle of appellate review, I would assume that the jury followed the judge’s directions: R. v. Corbett, [1988] 1 S.C.R. 670, pp. 694-95, per Dickson, C.J.C.;  R. v. Suzack, [2000] O.J. No. 100 (QL) (C.A.), at para 128, per Doherty, J.A.; Ward, supra, paras 37-39.   

[144]   But the instructions didn’t stop there. The Chief Justice added directions as to the jury’s permitted use of the Lynds’ excerpts. My concern is with the confusion introduced by the instructions on the jury’s permitted use. The jury was charged (above, para. 131): “you can use it for context in relation to his … the statements that … and the answers that Les Greenwood is giving and the Crown has every right to put that statement before you to allow you to consider the various things that he said ….”  What was the jury to make of this instruction?

[145]   The only issue for the jury “to consider [about] the various things he said” was Greenwood’s credibility. The instruction would lead the jury to understand that they should “contextualize” Lynds’ statements to assess the credibility of Greenwood’s denial. That was the Chief Justice’s understanding. He said  (above para 130) “it’s only to put it into context. It goes to the credibility of the answers”.

[146]   Jeff Lynds said Greenwood shot Mersereau and Christensen. Greenwood said he didn’t shoot anyone and didn’t have a gun. The jury attributes meaning and value to both statements, positions Lynds’ spoken word next to Greenwood’s spoken denial, compares and appraises the spectacle. That is the natural way to use Lynds’ statement to assess Greenwood’s credibility.  But attributing value to Lynds’ statement is impermissible, and is forbidden by the Chief Justice’s other instruction. It isn’t apparent how the jury could reconcile the two instructions. 

[147]   This potential for confusion in the jury room, on a damning item of evidence, stemmed from the threshold ruling that Lynds’ excerpts would be played for the jury, without either a voir dire to hear the tape or a balance of prejudice against probative value. It was compounded by the attempt to identify for the jury some permissible use for valueless evidence.

[148]   In Daley, supra, Justice Bastarache (para. 32) said: “The trial judge must set out in plain and understandable terms the law the jury must apply when assessing the facts.” In my view, the Chief Justice’s instructions on the permissible and impermissible uses of the Lynds’ excerpts were, in the circumstances of this case, inconsistent, and not plain and understandable.

[149]   In my respectful view, the Chief Justice erred in law by (1) not holding a voir dire, or at least listening to the Lynds’ excerpts, before ruling on their admission, (2) not conducting a balance of probative value against potential prejudice, (3) not directing a redaction of the Lynds’ excerpts, and (4) giving the jury potentially conflicting instructions on the use of the Lynds’ excerpts.

                             10. Curative Proviso  -  Section 686(1)(b)(iii)

[150]   The Crown says that the unqualified admission of Mr. Bailey’s evidence and the effect of Jeff Lynds’ recorded statement caused no substantial wrong or miscarriage of justice, and any error of law should be excused under s. 686(1)(b)(iii).

[151]   As to Mr. Bailey’s evidence, counsel for the Crown says that the judge’s many cautions for Jeff Lynds’ statements gave the jury an “evidence class” in hearsay. So, despite the absence of any limiting instruction for Bailey, the jury must have known that Bailey’s evidence could not be used for the truth of its contents.

[152]   The Crown’s factum says that “[i]f the trial Judge did err in admitting the Lynds excerpts, given the numerous and strong limiting instructions and cautions, the error was minor in its effect”.

[153]   In R. v. Van, [2009] 1 S.C.R. 716, Justice LeBel summarized the approach to s. 686(1)(b)(iii):

34   It is worthwhile taking one small step back for a moment to acknowledge that not every error in a criminal trial warrants appellate intervention. Under s. 686(1)(a) of the Criminal Code, an appeal against a conviction may be allowed only in the event of an error of law, an unreasonable verdict, or a miscarriage of justice. In this case, it is not disputed that the failure to give a limiting instruction is an error of law that falls within s. 686(1)(a)(ii) and that the appeal could therefore have been allowed. However, it still falls to this Court to determine whether the convictions can be upheld despite the existence of an error, with resort to s. 686(1)(b)(iii) of the Code. Under this provision, a conviction can be upheld providing that the error has not resulted in a substantial wrong or a miscarriage of justice. The Crown bears the burden of showing the appellate court that the provision is applicable, and satisfying the court that the conviction should stand notwithstanding the error. To do so, it must establish that the error of law falls into one of two categories. First, that it is an error so harmless or minor that it could not have had any impact on the verdict. In the second category are serious errors that would otherwise justify a new trial or an acquittal, but for the fact that the evidence against the accused was so overwhelming that any other verdict would have been impossible to obtain. [citations omitted]

To similar effect: R. v. Charlebois, [2000] 2 S.C.R. 674, paras 10-11;  R. v. Khan, [2001] 3 S.C.R. 823, paras 26-31;  R. v. Trochym, [2007] 1 S.C.R. 239, paras 81, 190; Ellard, supra, para 40; R. v. Jaw, [2009] 3 S.C.R. 26, para 42.

[154]   A decision by a judge alone is accompanied by written reasons that may assist the appeal court to decide whether the error falls in one of the two excusable categories: R. v. O’Brien, [2011] 2 S.C.R. 485. But  a jury leaves no written reasons and the appeal court “cannot, of course, peer into the jury room”: R. v. Illes, [2008] 3 S.C.R. 134, para 22. So the appellate exercise to divine what a jury might have done, but for the error, may become too speculative for the Crown to satisfy its onus: e.g. Illes, paras 22-23.

[155]   In Greenwood’s case, the Crown has not satisfied its onus.

[156]   These were not errors “so harmless or minor that [they] could not have had any impact on the verdict”. The convictions hinged on Lawrence’s testimony. Lawrence was the “ultimate unsavoury character”. The jury was urged to search for confirmatory evidence. This was a trial seeking a tipping point.

[157]   Mr. Bailey’s evidence literally confirmed Lawrence’s version, and contested  Greenwood’s version of the critical disputed fact. I cannot accept the Crown’s suggestion that the jury’s “evidence class” with the Lynds’ cautions infused the jury with such expertise in hearsay law that a caution was unnecessary for Mr. Bailey’s evidence. The jury doesn’t cobble its own evidence rulings. It assumes that the judge will caution them on the application of evidence law. The jury wasn’t even instructed that Mr. Bailey’s evidence of the events of September 9, 2000 was hearsay. They may have inferred the opposite message – i.e. that, unlike Lynds’ excerpts that elicited explicit cautions, the absence of a caution for Mr. Bailey meant they were free to use Mr. Bailey’s evidence as they pleased.

[158]   Jeff Lynds’ statement contradicted Greenwood on whether Greenwood was the trigger man. The judge directed the jury to use Jeff Lynds’ statement, not for the truth of its own content, but to assess Greenwood’s statement. The only live assessment exercise involved Greenwood’s credibility. The jury may have used the contents of Lynds’ statements to assess Greenwood’s credibility negatively on the pivotal disputed fact. Section 686(1)(b)(iii) “does not invite the Court of Appeal to wade into the waters of truthfulness and ‘retry the case to assess the worth of the residual evidence after the improperly adduced evidence has been extracted from the record’ ”: R. C.J., 2011 NSCA 77, para. 54, and authorities there cited.

[159]   Neither was the other evidence “so overwhelming that any other verdict would have been impossible”, under Van’s second test. Lawrence admitted to being a drug ravaged severe schizophrenic who hallucinated and heard voices and whose memory operated at either 10% or 25 %, to icily assassinating three persons he had never met before, and to lying to the police, because it suited him, that another individual committed the crime of helping him hide Maddison’s body. It was possible that a jury might question this gentleman’s reliability or the solemnity of his oath. Others with personal knowledge  – Jeff Lynds, Curtis Lynds, Jonathan Burgoyne – didn’t testify. Jason Lindsay – himself a Vetrovec witness -  was the only other protagonist in the witness box. Lindsay said that Greenwood was at Curtis Lynds’ home on September 10 which, as the Crown notes, contradicted Greenwood’s statement. But Lindsay also testified that, on September 10:

Q.  And Curtis Lynds asked Mike Lawrence if he did it, correct?

A.  Yes.

Q.  And you indicated Mike said, Yeah, I got them both. Correct?

A.  Yes.

Q.  He didn’t say, We got them both. Did he?

A.  I never heard him say, We got them both.

Q.  Right.

A.   He said, I got them both.

Lindsay’s evidence could have nudged the jury in either direction.

[160]   As the Crown has not shown that the proviso’s pre-conditions exist, I decline to excuse the errors of law under s. 686(1)(b)(iii).

                                                         11. Conclusion

[161]   I would allow the appeal, overturn both convictions, and order that the Crown may initiate a new trial.

 

 

                                                                    Fichaud, J.A.

         

Concurred:              Farrar, J.A. 

                                Bryson, J.A.